The nature of democracy in India is an important question to ask in the 21^st century. It is important to understand that accountability, free and fair elections, and the will of people, all remain the most important facet of democracy. However, whether our democracy truly justifies the needs of present-day society, whether in the digital age where everybody has access to social media and can have their own opinion truly get to know what they deserve from the lawmakers. Throughout the research, we are going to analyze with examples to understand whether Indian democracy stands still from the present-day challenges of democratic subversion.

We will examine the global emergence of democracy to truly understand the nature of democracy. Then, we will look the need of democracy in India and then we will find whether our democracy is inclusive or exclusionary in nature and finally we will look into our legal system to identify the mechanism of democracy and how they are functioning.

I. Emergence of Democracy – Global perspective

We need to trace the origin of democracy to better understand the original conceptions and what are major advancements that have taken place in modern democracy. This study would trace the Ancient Greece and find out the democracy in the city-states of Athens and Sparta. From the ancient Greek city-states to the diverse structures of the Roman Republic, the seeds of democracy were sown, slowly evolving over time to become the fundamental framework for many contemporary nations.[1]

While the term democracy may have originated with the Greeks, our presentation will contend that the essential democratic custom of requiring rulers to obtain council approval originated independently across a wide range of human communities. Political scientists’ standard narratives typically ignore this important detail. Even the insightful observer Robert Dahl (1998) proposed that while democracy might have been commonplace at the time when humans were hunter-gatherers, monarchy and tyranny became the norm once people settled into agricultural communities.

We shall argue that Dahl was correct regarding a subset of human societies. In many settled communities, councils-imposed restrictions on their rulers. We do not assert and in most cases did not state that council governance also indicated the kind of extensive political engagement that is found in many modern-day nations. Nonetheless, getting consent was a fundamental democratic practice that was widely followed. We also propose that the emergence of council governance was more likely to occur in contexts where the rulers had less information than the people they aimed to dominate. In these circumstances, the rulers and the ruled could accomplish better results by sharing authority with an information-gathering council.[2]

The short- and long-term effects of early state development have been studied by several contemporary writers. This work has only addressed the question of whether a centralised state emerged. We investigate the existence of states as well as their nature, specifically focusing on whether they were more autocratic or relied on councils for collaborative control. Mayshar, Moav, and Neeman (2017) have made a significant contribution by arguing that a state was more likely to adopt a coercive role in early societies where production was more visible.

Using an essential agent model and an examination of Ancient Egypt, they demonstrate this. In this civilization, the great predictability of agricultural production may have contributed to the emergence of a more authoritarian state. We begin with the same fundamental understanding of production transparency and move on to explore how actual governance structures might change over time to address information asymmetry. A council whose members could give knowledge about local situations was more willing to share power with rulers in the event of information asymmetries.

I. 1. The driving forces of Democracy

One of the major arguments related to democracy is that democracy has come into origin with the existence of the state. Without a state, there is no chance of democracy. Authors like Juan Linz stated that- ‘No State, No Democracy’.[3] We need to understand the there are various factors involved in emergence of the state. The characteristics of state formation start with population, territory, government and sovereignty. So, we can say that assuming control over particular territory and population and exercising sovereignty makes a state. But the major question remains why the sovereign will dilute his powers to the people by adopting democracy.

Whether the real exercise of power can come with the dilution of power to the subjects of power. All these questions have been answered by several authors, the reason of such dilution was the better exercise of power. Dahl in his book made an observation on growth of democracy all around the world, he found that there is major growth of democracy around 1990s. This major shift answers many questions regarding democracy. It will be studies carefully in this paper to identify the nature of democracy in India. However, before delving into detail we need to understand exactly what is democracy.

The word democracy derives from two words demos (people) and Kratos (Ruling). Democracy means the rule of people. In a paper, the author discussed democracy is a way of social compromise.[4] As the decision of people must come collectively, compromising the needs who do not agree with the decision. There are two major ideas that we will discuss regarding democracy. First, ideas proposed by John Dunn[5] and Second, Ideas proposed by Robert Dahl. The former proposed two forms of democracy: real and ideal democracy. He stated that democracy is itself a utopian concept, these two forms of democracy cannot be simultaneously embodied in any political activity. Whereas Dahl stated that:

“Democracy means something different for people situated in different times and places. For instance, in ancient Greece, democracy was only enjoyed by free men; in the early period of US political history, democratic rights were given only to white male in colonies; today, although all citizens have democratic rights in law, what they really have in political life, in fact, are voting rights.”

Many authors argue that in the emergence of democracy, socio-economic development plays an important role. However, arguing against such notion Przeworski and others in 1996 paper argues that Democracies can survive even in the poorest nations if they manage to generate development, if they reduce inequality, if the international climate is propitious and if they have parliamentary institutions.[6]

Therefore, we can say that the economic factor cannot be the sole reason but an associate factor for emergence of democracy. While Authors like Amartya Sen states that a country does not have to be deemed fit for democracy, rather it has to become fit through democracy.[7] Therefore, there are multiple driving factors for the growth of democracy.

I.2. Factors for growth of Democracy in Greece

Understanding the reasoning in this paper requires some historical context. First, there existed a special window of opportunity for economic expansion throughout the Archaic era. Second, there were more pronounced intraelite differences along the coast due to the fact that coastal poleis had a larger potential for economic expansion than inland poleis, which had less access to the sea and more fertile soil. Third, the prerequisites for a stable democracy had been established by the Classical era, namely, a large citizenry with congruent policy goals. Here, we go into further detail on these issues, summarise the thoughts of classicists regarding tyrants, and lay out our theory.[8]

Moving to the first factor, Greek expansion found particular favour throughout the Archaic period. Following the demise of the Mycenaean civilization (c. 1100 BCE), centuries of shrinkage had left a large amount of empty land and resources available for the rapidly expanding Greek population. A change in climate that brought cooler, wetter weather to the Mediterranean Basin was a significant exogenous factor that fueled the rise of the Archaic period. This change in climate enhanced agricultural productivity and decreased damage from regional diseases that had been lethal in previous periods (Morris 2010).

Greece’s proximity to the commercially active and economically developed Near East allowed Archaic poleis to quickly establish—or, more accurately, reestablish—significant trading networks. Technological innovation is a key indicator of the economic dynamism of Archaic period Greece; according to Boardman (1982, p. 449), the first “Greek studios in command of new techniques and producing wares which we would regard as wholly Hellenic in character” appear in the seventh century BCE.

A wave of Greek colonisation follows, reflecting the dynamism as well. According to Graham (1982, pp. 160–62), Greek poleis created 139 colonies between 800 and 500 BCE. “During the three centuries… 800–500 B.C. the eco nomic social infrastructure of the Greek world underwent massive alterations which set the framework for the Classical age,” writes Starr (1982, p. 417) of the Archaic period.

In terms of economics, the amount produced rose dramatically in comparison to previous centuries, and the variety of goods and fashions was considerably greater. Overseas trade flourished during the eras under consideration. In the most active states, there is a noticeable widespread interest in financial gain, at least among their metropolitan elements. Although estimates of energy capture show notable improvements, standard measurements of economic growth (such as gross domestic product) are not available for the era (Morris 2010).

Second, it was evident that coastal poleis had easier access to sea-based trading channels than interior poleis did. It is evident that poleis along the coast benefited considerably more from economic expansion when one considers the fact that their soil was generally less fertile than that of other poleis. Because of their more diverse range of interests, the elites on the coast were split apart by the possibility of commercial expansion, but the elites inland remained largely together due to their more homogeneous interests.

The distinctions between the interior and shore are summarised by Boardman and Hammond (1982, p. xv) as follows: “The social and political effects of the economic revolution became apparent first in those states of old Greece which lay closest to the Isthmus [along the coast] and were subject to the impact of new forms of wealth. The long-established rule of landed aristocracies of birth collapsed through divisions within the upper echelons of society, and the Greek genius for political experimentation and for political strife was given free rein…. But in other parts of the mainland [inland] the traditional way of life persisted, and modifications came slowly.”

The distinction is essential, because as Hall (2007, p. 45) writes, “The rise of tyrants can only really be satisfactorily explained against the background of internal frictions among elites.”[9]

Thirdly, the democratic poleis that arose from despotism—most notably Athens—grew prosperous and prospered (Ober 2010). Enough enfranchised citizens must agree on policies to the point of cooperation rather than conflict over income distribution for there to be a stable democracy. Greeks in the Classical period were acutely aware of the consequences of internal strife, having experienced the intraelite fights of the Archaic period.

They were known to be extremely concerned about civil conflict, which they called stasis, and went to considerable lengths to prevent it (Hansen and Nielsen 2004). They heavily emphasized matching incentives for policy decisions in order to achieve that goal. For instance, Aristotle contended that in order to foster consensus on defence, every citizen of a well-run polis should own land in both the city centre and the polis’s borders. Or take into consideration this speech (from commercial litigation) about the significance of contract enforcement for all Athenians: “Remember that by settling one issue, you are creating a law that applies to the entire port of Athens.

Many of the men who have made the decision to trade internationally are keeping an eye on you to see how you would rule in this instance. Lenders will be more willing to release assets from their holdings if you believe that written agreements and commitments between partners should be enforceable and you will not support those who violate them. You will profit as a result, and the port will prosper (Harris 2006, p. 143). The less motivation a citizen has to conduct activities that could undermine democracy, the more closely linked the policy objectives are. Moreover, Greek democracy prospered until the invasion of the Macedonians.

The democratic spirit continued to evolve, finding its way into various societies over time. The Roman Republic, for instance, implemented a form of representative democracy where elected officials represented the interests of the populace. However, as empires expanded, the centralization of power often led to challenges in upholding the true values of democracy. As civilizations waxed and waned, the concept of democracy endured, albeit with intermittent challenges to its essence.

The emergence of democracy was not without its trials. In its infancy, democracy was confined to a select group of privileged citizens, excluding women, slaves, and non-citizens from the decision-making process. Moreover, maintaining the delicate balance between the will of the majority and safeguarding the rights of minorities posed persistent challenges. Struggles for power, corruption, and external threats also threatened the stability of nascent democratic systems, demanding continuous adaptation and resilience from those who championed its cause.

Finally, the researcher would like to add the three major criteria to be fulfilled to hold democracies together[10]:

1. Reduction of autonomous power centre in control of coercive means within state’s territory.
2. Insulation of public politics from major categorical inequalities.
3. Integration between interpersonal network of trust and public policies.

II. Need for Democracy in India

The question of whether India needs democracy or not was long answered and accepted in 1949 through the Constitution of India. We have adopted a democratic setup, but what made us accept the democratic form of government? It is interesting to note that the Indian population is most diverse all over the world. Therefore, the minorities that are not addressed through democratic means create a challenge to the maintenance of law and order. As we talk about individuality in democracy, the people are not the same, they consist of individual, and democratic setup require a majority of individuals to make decisions.[11]

Starting with the famous statement of Sarbani Sen: “The Founders’ attempts to institutionalize popular sovereign will originated in the idea of sovereign power vesting in the hands of the people that was developed in extremist and Gandhian thoughts. Though the Gandhian form of direct exercise of political authority by the people in self-governing village polities was not accepted by the Constituent Assembly, the idea of popular sovereign power, and the institutionalization of public-minded deliberative politics by the people, and within government branches, manifested itself in various themes.”[12]

The idea pointed out by Sen reflects how the power transition from colonial rule to the people of India is one of the major focuses of the constituent assembly. To secure the rights of the people, giving them ultimate authority to decide on the issues related to public importance. In the realm of struggle revolving around rights, democracy was ensured for the people of India.

One of the famous quotes of Abraham Lincoln is that Democracy is the government of the people, by the people, and for the people. The role of people in democracy is of extreme importance as they are ultimate decision makers. We have adopted a republican democracy, which means we will be represented by the person we elect. This transition from colonial rule to democratic form of government reflects the struggle of Indians. The history involved can never be ignored as it played an important role in shaping the form of government we accepted today.

Many authors have pointed out this, Sarbani Sen stated in her book that one cannot forget or separate the history of the popular struggle against colonialism from the constitution that proclaimed the sovereignty of those very same people.[13] Similarly, Granville Austin also reiterated the same idea where he stated that ideas and spirit of English liberal democracy fell on fertile ground. The success of Indian Constitution came with the Indian receptivity to democratic ways.

Was there any other way to survive of Indian constitution other than that of the democratic way is a big question to ask. If in the Constituent Assembly, the thoughts and deliberation of accepting democracy is not discussed. In such a situation, whether our constitution would be able to survive. The author thinks of no other way we can offer India considering its diversity, any other form of government. This thought has been presented in eloquent manner by Rajeev Bhargava, “In 1950, for the first time in their history, a diverse collection of individual and groups became the people of a single book that reflects their commitment to protect their mutual rights and which articulates a collective identity.”[14]

Choosing democracy for India provides several advantages, it is pertinent to note that India is a unique country having the utmost diversity. The adoption of democracy can help India form a better choice allowing everyone to present their views and perspectives. Adoption of democracy directly avoids the presence of Tyranny. As plurality of thoughts and problem solving in democracy is ensured in peaceful manner with discussions, deliberations, debate, providing opportunities, etc., it reduces a chance of building one major dominant power. When every thought is appreciated and given the opportunity of presenting, people will feel important and that led to avoidance of lot of conflicts.

When we live in a plural society, one’s idea is not always the most important thing. This might hurt the sentiments of certain groups but in democracy people are given chances of presenting their views in society. Though their ideas may not be accepted but deliberations and discussion occurred on them rather than rejecting them in tyrannical government where idea cannot even get a platform. When multiple ideas come to a person it helps them lead a life in more suitable manner than the monotonous idea or single hand perspective of things.

We as people need to be constantly in touch with the people, interacting with people makes our life meaningful. There is a price tag of such association or interaction, we always cannot get what we inherently want. We need to respect others’ ideas, the measure of good and mature democracy is that how in a situation of conflict, the problem is resolved.[15]

Suppose, there are certain fundamental rights that is enshrined in the constitution. Can we ensure the enforcement of fundamental rights without ensuring democratic form of government. The answer does not require many considerations, as rights itself is not absolute itself it has certain restrictions.[16] These restrictions in a democratic society is fairer than others as everyone’s rights are catered.

Furthermore, there is generally more freedom in a democratic society. As it is reflection of people, they ensure that everyone should get an opportunity to able to exercise their freedom. Large numbers of people do not want to interfere with other people’s life and similarly they do not want them to be interfered. Both by government and person, interfering in other persons life is not something they want as it is against the fair exercise of rights. Right to privacy is recognized as a fundamental right,[17] whether it would be possible to ensure such right in tyrant government.

Similarly, in a democratic setup, there is possibility that people will get to exercise self-determination, moral autonomy, human development, protection of essential personal interest, political equality, peace keeping and prosperity.[18]

Therefore, the struggle of the people against colonial rule laid down the ground for acceptance of democratic form of government in India. Furthermore, the Britishers have divided India on the basis of caste, religion, and ideas in accordance with their policy of divide and rule. It was, therefore, need for India to accept democracy so as to cater everyone views’ by accepting democracy to conquer the struggle led in the past.

III. The Inclusive or exclusionary nature of Indian democracy

Dealing with inclusiveness of Indian democracy is important to know the impact and quality of democracy in India. A good democracy should ensure maximum involvement of the major stakeholders. Democratic rights should be available widely to all people and it should only be curbed on reasonable grounds.[19] The reasonable grounds should be proportionate to restrictions imposed on curbing democratic rights.

India’s democratic path started with the official inauguration of the system in 1947. The Westminster model of parliamentary democracy was chosen by the drafters of the constitution as the cornerstone of its political structure. Adoption of democracy even after more than three and a half centuries of British rule demonstrates the great appeal of democracy among India’s political elite.

The primary argument is that India has undergone significant institutional changes since independence, which have shaped the country’s democratic transition trajectory. These changes are attributed to the interests and ideology of the ruling party at the centre. The provisions and revisions made to the Constitution were procedural in nature; they lacked the substance element that is crucial for an inclusive democracy. When the sectarian parties entered politics and made clear political appeals for their different communities, the democratisation of the political system gave the marginalised communities fresh hope. However, economic disadvantage became the most significant threat to inclusive democracy as cleavage-based, coalition politics faced a globalised economy that brought new forms of market-based exclusion.

The inability of the state to provide substantive equality was demonstrated by the failures to transfer resources for the benefit of SCs, STs, OBCs, and religious minorities, as well as by the futile attempts to reduce regional inequities. India’s democratic experiment was undoubtedly met with scepticism, owing to the British model of parliamentary democracy, which required the introduction of a party-based competitive democratic system with a representative type of election system and universal adult franchise.

There were several places where predictions of political unrest and the eventual fall of democracy were predicted.[20] Selig S. Harrison expressed concerns about the viability of democracy in India given the growing diversity of caste, colour, race, and religion in the nation in his well-known book, “India: The Most Dangerous Decades.”[21] These fears arose from the presumption that India, as an independent nation, lacked the elements necessary for a fully developed liberal democracy. Indian society, in contrast to the West, has always been diverse and clearly divided along the lines of caste, class, religion, geography, and language.

In addition, there was a dearth of social cohesion, a high rate of illiteracy, economic regression with significant wealth inequality, and the persistence of one party’s control in India. Niraja Gopal Jayal continues this discussion over the viability of democracy in the nation by pointing out that Indian society has never had the “cultural and civic infrastructure” that is necessary for a successful democracy. She goes on to say that it has been challenging to firmly establish democratic ideas in India due to the country’s hierarchical and uneven social structure.

Notwithstanding the flaws and inconsistencies in Indian democracy that various critics have pointed out, it is true that India is one of the few post-colonial states that has been able to successfully transition from a colonized to an independent democratic nation. The degree and quality of this democratic transition in India may be the subject of intense scholarly dispute, but it is widely acknowledged that the Indianization of democratic values has strengthened their foundations.

We have identified that our democracy is primarily exclusive, as there are multiple factors playing a role in such exclusion such as the Gender role in Indian society. We know that our society is primarily patriarchal and it is identified by various authors that there is graded inequality in Indian society. One such prominent author is Werner Menski, In his book, Comparative Law in Global Context, he has pointed out that the caste system in India acts as an imminent threat for the development of Indian society as it acts as a hindrance in overall holistic development of India.[22]

The concomitant factor revolving around caste creates a barrier in society that can be traced to Democracy also. Therefore, there is a need to take major steps in Indian democracy to make it inclusive in nature in practice along with the theory.

III.1. Need for Pragmatic steps in Indian Democracy

First of all, notwithstanding the diversity and uniqueness of Indian society, the framers of the Constitution exercised extreme caution in order to guarantee and preserve national unity. However, the goal of these initiatives was never to homogenize the nation; rather, the establishment of a secular state guaranteed the acceptance and tolerance of minorities in terms of religion, culture, and language. Stated otherwise, the diverse nature of Indian society was valued and honoured by affording each and every ethnic and linguistic group the respect and acknowledgement it deserves.

When considering how to manage multiculturalism in the US and Indian states, it is reasonable to note that, whereas the US adopted the “melting pot culture,” which involved homogenising American society, the India state has instead supported the “salad bowl culture,” which upholds and protects the unique identities of various communities and cultures within the framework of national consolidation. From the outset, the political establishment in India was dedicated to advancing inclusive democracy through equitable representation and treatment of all populations.

The Indian leadership gave multiculturalism a positive value and did not perceive it as a danger, in contrast to the Western countries’ perspective on the issue, which saw it as harmful to their national unity and integrity. The following headings can be used to evaluate the Constitution’s institutional framework’s inclusiveness.[23]

To ensure that there is maximum inclusiveness in democracy, five standards as pointed out by Robert Dahl need to be considered. These factors are basis of any democratic process[24]:

1. Effective Participation
2. Voting Equality
3. Enlightened Understanding
4. Control of agenda
5. Inclusion of adults

Moving on to the first factor, effective participation is said to be ensured when the maximum number of people are allowed to participate in the democratic process. The process begins with ensuring equality in a formal manner by prescribing it in the constitution. Accommodating diversity is also a big challenge in India. Democracy should address the needs of every section of society. For this, the role of federalism becomes primary. The federalism as ensured in Indian constitution is also a form of accommodating diversity.

“Diversity refers to all the ways in which people differ, including primary characteristics, such as age, race, gender, ethnicity, mental and physical abilities, and sexual orientation; and secondary characteristics, such as nationality, education, income, religion, work experience, language skills, geographic location, family status, communication style, military experience, learning style, economic background, and work style.”[25]

This definition is good for diversity as it contains almost every aspect. However, every state or political institution should develop their own definition of diversity. There cannot be one definition of diversity. As the history of two states cannot be the same, so is the presence of an element of diversity. Some countries may be ethnically diverse, some may be diverse linguistically. Therefore, it is important to identify which element of diversity is essential for that country.

The recent growth of India has been thoroughly analyzed and comprehended. Although there was some temporary controversy regarding the effects of economic reforms implemented in the 1980s and 1990s – which were initially hesitant and fragmented but became deeper and more systematic in the subsequent period – the current consensus is similar to the previous one, indicating that a shift in economic policies towards relying more on market forces for resource allocation, including greater openness to global trade, has been a crucial factor in boosting India’s average growth rate from its previous low levels.

Acknowledging the role of market competition does not diminish the significance of the Indian government’s efforts in building physical infrastructure, human capital, and providing stability and safety nets. Nonetheless, the reform of India’s governance is one of the major areas of ongoing policy debates, along with the need for further liberalization of the economy in areas such as small-scale industry reservations, privatization, and openness to foreign capital.[26]

The Indian form of federalism is said to be a quasi-federal system where more power is given to the union government. However, merely the provisions of constitution provide more power to union does not means that federalism is not there.[27] It is to be seen in practice, in federal systems like India, the overall concerns regarding the quality of governance are closely linked to the functioning and characteristics of the multi-tiered system of government.

The viewpoint of the MPF (Market-Preserving Federalism) is that while good governance is fundamental, it is essential to curtail ineffective government intervention in the market. To accomplish this goal, the appropriate federal institutions play a significant role.[28] The state and union government should collaborate with each other, and their cooperation in policy making makes federalism successful with economic growth.

Further, Indian federalism has played a significant role in managing diversity, along with the role of the Supreme Court in passing important judgments on Articles 14, 15 and 16 of the constitution of India helped strengthen diversity in the country. Federalism in India is said to reconcile nationalism with localism.[29] India is the most diverse country in the world, it has more than 700 ethnic groups.

Although Indian Constitution gives more power to the Central government in its large legislative, financial and emergency powers. But the exercise of power by central government must be with caution. In a landmark case of Keshavnanda Bharti v. UOI,[30] the hon’ble supreme court held that federalism is the basic feature of our constitution. Also, In India, amending the federal features requires ratification of one-half of the state legislatures before any bill of amendment is presented before the president.[31]

Nevertheless, India has also seen conflicts due to the diversity, but this conflict has never come in the way of development. The one of the main reasons of this, as argued by various authors, is India’s unity policy, various government decisions promoting peace and harmony among communities. The religion has never been part of India’s federal policy, nation sentiments are pushed by the national party. The sense of collectiveness is there, where people of different communities can work together with cooperation.

Federalism, therefore, plays a major role in ensuring the effective participation of people in democratic machinery. Moving forward, the next important thing is ensuring the voting equality.

Voting equality can be ensured via providing reasonable opportunities to vote. People coming from different backgrounds have restrictions of access to a lot of things.[32] Access to information is one the major challenges, people living in urban areas have access to the internet in a wider level which provide them with the opportunity to access more information. It is also important to note that majority of user of internet access the internet from their mobile phones in India, therefore, the visibility of media, content consumption, and quality, differ from those who access the internet on laptops and other devices.

Next thing is enlightened understanding, it is also a very important thing for an ideal democracy, that people have an idea of their actions while making decisions and know their consequences. After that is control of agenda, which means which agenda to have a debate and discussions. Lastly, inclusion of adults, ideally every adult should be given opportunities to take part in democratic processes with certain reasonable limitations.

These are the important factors pointed out by Robert Dahl for an ideal democracy. However, checking the quality of democracy on these criteria cannot always be helpful because these are on ideal conditions. Any democracy that is approaching providing maximum benefits on these standards can be said to have an inclusive approach.

IV. Indian Legal System and Democracy Conceptualization

Now, after all the discussion on the emergence, need and inclusive approach, we need to discuss the democratic conceptualization as present in the Constitution and Indian Legal system and established through various case laws.

In the Constitution of India, the preamble begins with “We the People”, this connotation is taken from the US Constitution. Famous president Abraham Lincoln also used to mention that democracy is the government of the people, by the people, and for the people. We the people gives the idea that the constitution is accepted by every people of India though every person might have not taken part in formation process. On the day of adoption, the constitution laid down a single document which ensures that every citizen’s democratic right will be protected.

Further, the preamble of India declares it as a democratic republic, which means that people will elect their representatives democratically.[33] Republic nature ensures wide representation on the basis of the constituencies, people choose their representatives of a particular area to contest elections.

Further, the elections are conducted in a free and fair manner in India. It is ensured through the mechanism of election commission which is an independent body performing all the major functions. Part XV of the constitution contains the provision for election. It consists of articles from Art. 324 to 329.

Article 324 of the constitution provides for the provision of an Election commission. It states that the election commission to have superintendence, direction, and control of elections.[34] It further provides that the election commission have a chief election commissioner and other election commissioners as may be required which president may fix subject to provision of parliament. Recently, parliament has passed a bill modifying the salaries, appointment and other work conditions for CEC and EC.[35] We will analyze that bill in chapter V, where we will be critically examining the bill from the independence and role of EC perspective.

Article 325 of the constitution provides that there will be no special electorate on grounds of religion, race, caste or sex.^[36] This was done in light to prevent separate electorate issue which Britishers during their reign has try to imbed in Indian society.^[37] Further, Art. 326 provides universal adult suffrage rights, any person who cross eighteen years of age is eligible for voting. There are several restrictions also provided under the same article that on ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, suffrage rights can be curbed.^[38]

Supreme court recently held that right to vote is not a fundamental right upholding its previous judgment on similar question of law.[39] Apart from constitutional provisions, voting is governed by Representation of people’s Act, 1951 also. The provision for undertrial prisoner voting is often challenged on the ground that there is presumption of innocence in favour of the accused. Therefore, he should not be curbed the right of voting only on the ground of being in prison.

In Mahendra Kumar Shastri v. Union of India,[40] the Hon’ble Supreme Court stated that disqualification of prisoners for voting under Section 62(5) of RPA, 1951 is reasonable and is in public interest and not arbitrary and discriminatory. The court also upheld classification of preventive detention for exclusion from the ambit of the section on the ground that it is resorted to prevent breach of law while imprisonment on conviction or during investigation is subsequent to the commission of the crime.

Apart from all these factors, Indian federalism also plays a crucial role in democracy conceptualization. India is often called for its unique setup where the Central government is more powerful than the state government. This is famously quoted by a famous author as a quasi-federal setup. Article 248 of the constitution grants residuary powers to the parliament apart from the power enumerated in Schedule VII of the Constitution.[41]

Now, apart from the constitutional text, we will look the three major criteria required for holding democracy together forwarded by Charles Tilly and analyze the Indian democracy on these criteria:

1. Reduction of autonomous power centre in control of coercive means within state’s territory.
2. Insulation of public politics from major categorical inequalities.
3. Integration between interpersonal network of trust and public politics.

On the first criteria, it is essential that there is no central power that can take away control by coercive means within state territory. Three major things we can point out through this first criterion, first, there should not be an autonomous central power, second, there should not be controlling by coercive means and third, the control must be within state’s territory.

If we look Indian democracy, on paper it is perfect and fulfilling the first criteria. However, there are several times, when the government is in brute majority in centre, there is problem in fulfilling this criterion. We will look into detail this aspect in chapter V. Moving to the second criteria, insulation of public politics from major categorical inequalities. This aspect is very important from India’s perspective as India is highly diversified country and therefore it is necessity of the hour to avoid any political moves which create further inequalities.

Article 14 of the Constitution which ensures equality before the law and equal protection of law.[42] The Article 14 is necessary corollary of Rule of Law.[43] The rule against arbitrariness is an important facet of Article 14.[44] There should be reasonable classification and it must not be arbitrary, artificial, or evasive, if it does not following reasonability criteria, the court may declare such classification discriminatory.[45]

The Supreme court has given several landmark judgments to protect equality and ensure there is fairness in society. Article 14 constantly thrives to protect the persons from any categorical inequalities. However, there are some factors that need constant consideration such as the people voting on a caste basis. It is pointed out by an ADR report that still on a scale of 10, 5.11 people are voting because of caste.[46]

Moving to the third criterion, that is integration between interpersonal network of trust and public politics. One of the major ways to ensure this is through disclosing information of the candidate who are contesting election and through Right to information. Article 19[47] of the constitution ensures that every citizen has freedom of speech and expression specifically the right to receive information is an important facet of Article 19 of the Constitution. The citizens have the right to obtain information pertaining to public acts.[48] There can only be reasonable restrictions for curtailing this right.[49]

Moreover, Article 21 of the Indian Constitution which ensures the “right to life and personal liberty” of a person.[50] “Law must be fair and reasonable and not arbitrary”.[51] Apart from the information of candidates, there is requirement that the election funding should be in right manner so every party should get the requisite representation.  Transparency and accountability are essentially important for any democratic country. India is a country where the condition of electoral funding is miserable. It requires a funding system where people can access the information easily and get to know the information behind the veil to articulate a wise decision and informed choice in voting. 

This right to access information is guaranteed under Article 19 of the Indian Constitution,[52] the Hon’ble Supreme Court has interpreted this right liberally to define its four broad purposes such as “it helps an individual to attain self-fulfillment; it assists in discovery of truth; it strengthens the capacity of an individual in participating in decision-making; and it provides a mechanism by which it would be possible to establish a reasonable balance between stability and social change.”[53]

Recently, supreme court is hearing matter on electoral bonds and supreme court pointed out several discrepancies of electoral bonds.[54] The goal of preserving political donation willingness and deterring large contributions from shell corporations served as the starting point for the conversation. According to the SG, the changes were made to promote the entry of clean money into the system and discourage cash transactions.

CJI DY Chandrachud did, however, point out that prior to the program’s introduction, businesses could only donate 7.5% of their net profit from the previous three fiscal years. Conversely, upon the scheme’s launch, any business, regardless of its profit or loss position, might make a contribution. According to the Solicitor General, a non-profit organisation was not eligible to make a donation. Giving the same explanation, he went on, “Because a shell company can then donate.” That negates the purpose.

The imperative to lessen the electoral process’s reliance on cash, the promotion of approved banking channels for campaign contributions, the promise of confidentiality for donors using these channels, the critical need of electoral financing transparency, and the prohibition of any kind of quid pro quo or kickbacks between those in positions of power and financial backers were some of these considerations.

In order to maintain the integrity of the election process, the CJI emphasised that a balanced approach had to be found—one that could effectively address these problems without encouraging opacity or misuse. He went on, “It’s not that there is an either or- that either you do this or go back entirely to cash. You can design another system which doesn’t have the flaws of this system- they put a premium on opacity. You can still design a system which balances out in a proportional way. How it is to be done that’s up to you, that’s not our arena.“

So, this discussion shows that still in India, there is lot of discrepancies in election funding and that needs to be resolved through a process that is proportional to the need of current day society. In ensuring that, it is required for the parliament to balance the right in such as right to information and right to privacy of voters. Else we can state the electoral bond scheme as colourbale legislation. Electoral bond scheme is a Colourable Legislation. The Hon’ble SC has defined the meaning of Colourable legislation in K.C. Gajapati Narayan Deo v. State of Orissa[55]as:

“if the Constitution of a State Distributes the legislative powers amongst different bodies,…. if there are limitations on the legislative authority in the shape of Fundamental Rights, the question arises as to whether the Legislature in a particular case has or has not, in respect to subject-matter of the statute or in the method of enacting it, transgressed the limits of its constitutional powers. Such transgressions may be patent, manifest or direct, but it may also be disguised, covert or indirect, or and it is to this latter class of cases that the expression colorable legislation has been applied in judicial pronouncements.”

The definition by the Hon’ble Supreme Court clearly shows that the EBS is colorable legislation as there is Constitutional limitation on the legislature to not frame laws that violate Fundamental Rights. In testing the Constitutional validity of provision, fundamental concern of Court is the existence of enacting power and whether such provision impinges upon any rights enshrined in part III of the Constitution.[56] There are violation of several fundamental rights as pointed out by supreme court in recent hearing.

Now, It is clear that there is a ‘Basic Structure of the Constitution’ containing the deeply rooted ideologies which reflects the essence of the Constitution. These ideologies act as a guiding principle for the nation and play a significant role in national development. One of the ideas being India as a ‘Democratic Republic’ which is enshrined in preamble. With Judicial pronouncements, the Preamble acts as an aid in Constitutional interpretation.[57] Therefore, the constitutional virtue of Democratic Polity can be derived from there and it was also held as a basic feature of Indian Constitution. As per Khanna, J.:

“A Constitution cannot be regarded as a mere legal document to be read as a will or an agreement nor is constitution like a plaint or a written statement filed in a suit between to litigants. A Constitution must of necessity be the vehicle of the life of a nation.”

That the Hon’ble Supreme Court in the case of Kihoto Hollohon v. Zachillhu & Others[58]held that “Democracy is a basic feature of the Constitution and the election conducted at regular prescribed intervals is essential for the democratic system envisaged in the Constitution. So is the need to protect and sustain the purity of the electoral process. That may take within it the quality, efficiency and adequacy of the machinery for resolution of electoral disputes.”

Combining all these reasons make it apparently very clear that there is need to protect democracy from schemes like EBS as this effect the democratic process substantially by affecting the process of free and fair elections.

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[1] Robert Dahl, On Democracy (Yale University Press 1998).

[2] New York University, https://www.law.nyu.edu/sites/default/files/upload_documents/Origins%20of%20Early%20Democracy.pdf (last visited Oct 19, 2023).

[3] Juan Linz, The failure of presidential democracy (John Hopkin University Press 1994)

[4] Zhen Han and Lihe Dang, Democracy as a way to social compromise, 1 FPC 1, 2 (2006). 

[5]John Dunn, Democracy: The Unfinished Journey (Oxford University Press 1993). 

[6] Przeworksi, Democracy and Economic development, NYUP, https://as.nyu.edu/content/dam/nyu-as/faculty/documents/sisson.pdf (last visited Oct 17, 2023).

[7] Amartya Sen, Democracy as a universal value, (1999).

[8] Robert K. Fleck and F. Andrew Hanssen, How Tyranny Paved the Way to Democracy: The Democratic Transition in Ancient Greece, 56 TJLE 389 (2013).

[9] Id.

[10] Charles Tilly, Democracy, (Cambridge University Press 2007).

[11] Zhen Han and Lihe Dong, Democracy as a Way to Social Compromise, 1 FPC 1, 2 (2006).

[12] Sarbani Sen, The Constitution of India: Popular Sovereignty and Democratic Transformations (Oxford Press 2007).

[13] Id.

[14] Rajeev Bhargava, Politics and Ethics of Indian Constitution (Oxford University Press 2012).

[15] Robert Dahl, On Democracy (Yale University Press 1998).

[16] Yashee, What Ambedkar Said about fundamental rights https://indianexpress.com/article/explained/constitution-day-ambedkar-fundamental-rights-minorities-protection-8290465/#:~:text=Dr%20Ambedkar%20said%20that%20fundamental%20rights%20could%20not%20mean%20absolute%20rights. (Oct 17, 2023, 10:22 AM).

[17] KS Puttaswamy, supra note at 13.

[18]Robert Dahl, supra note at 48.

[19]Pew Research Center https://www.pewresearch.org/global/2020/02/27/democratic-rights-popular-globally-but-commitment-to-them-not-always-strong/ (last visited Oct 17 2023).

[20] Paul R. Brass, The Politics of India since Independence (Cambridge University Press 1994).

[21] Partha Chatterji, Development Planning and the Indian State (Oxford University Press 1997).

[22] Werner Menski, Comparative Law in Global Context (Cambridge University Press 2006).

[23] Sashikant Pandey et al., Indian Democracy: Inclusive in Theory Exclusionary in Practice, 557 IJPS 559 (2013).  

[24] Supra note

[25] Williams, D. A., Strategic diversity leadership: Activating change and transformation in higher education. Sterling, VA: Stylus (2013).

[26] Nirvikar Singh and T.N. Srinivasan, Federalism and economic development in India: An assessment, University of California (2006) https://mpra.ub.uni-muenchen.de/1273/ (last visited Apr 15, 2023).

[27]H.M. Seervai, Constitutional Law of India (4th ed. 2018).

[28] Shleifer (1995).

[29] Dicey, Law of Constitution (1952).

[30] Keshavnanda Bharti v. UOI, (1973) 4 SCC 225.

[31] Ind. Const., 1950, art. 368 cl. 2 proviso.

[32] Shruthi Koratagere Anantha Kumar, A Survey on Rural Internet Connectivity in India, https://hal.science/hal-03368217 (last visited Oct 18, 2023).

[33] Zuckert, Catherine. “MACHIAVELLI’S DEMOCRATIC REPUBLIC.” History of Political Thought, vol. 35, no. 2, 2014, pp. 262–94. JSTOR, http://www.jstor.org/stable/26226880. Accessed 19 Oct. 2023.

[34] Ind. Const. art. 324(1).

[35] Live Law, https://www.livelaw.in/articles/election-commission-bill-chief-election-commissioner-238919 (last visited 28 Oct, 2023).

[36] Ind. Const. art. 325.

[37] The Hindu, https://www.thehindu.com/news/national/tamil-nadu/with-a-separate-electorate-for-scs-the-british-tried-to-turn-ambedkar-into-another-jinnah-says-governor/article66230556.ece (last visited 28 Oct, 2023).

[38] Ind. Const. art. 326.

[39] Aditya Prasanna Bhattacharya v. UOI And Ors., WP(C) Np. 462/2019.

[40] Mahendra Kumar Shastri v. Union of India, (1984) 2 SCC 442. 

[41] Ind. Const. art. 248.

[42] India Const. art. 14.

[43] Ashutosh Gupta v. State of Rajasthan, (2002) 4 SCC 34 [hereinafter Ashutosh].

[44] Bachan Singh v. State of Punjab, AIR 1982 SC 1336 [hereinafter Bachan Singh].

[45] S Seshachalam v. Bar Council of TN, (2014) 16 SCC 72 [hereinafter Seshachalam].

[46]ADR, https://adrindia.org/sites/default/files/Voting%20pattern%20of%20citizens%20in%20India%20based%20on%20ADR-Daksh%20Survey.pdf (last visited Oct 28, 2023).

[47] India Const. art. 19.

[48] PUCL v. UOI (2003) 4 SCC 399 [hereinafter PUCL].

[49] Gujarat Water Supply v. Unique Electro (Gujarat) (P), AIR 1989 SC 973.

[50] India Const. art. 21.

[51] Maneka Gandhi v. UOI, AIR 1978 SC 597 [Hereinafter Maneka].

[52] India Const. art. 19.

[53] Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, AIR 1986 SC 515. [Hereinafter: Indian Express].

[54] Live Law, https://www.livelaw.in/top-stories/electoral-bonds-do-it-in-a-proportional-tailor-made-manner-which-took-care-of-serious-deficiencies-supreme-court-tells-union-day-3-241492 (last visited Oct 28, 2023).

[55] K.C. Gajapati Narayan Deo v. State of Orrisa, AIR 1953 SC 375. 

[56] UOI v. Exide Industries Ltd., (2020) 5 SCC 274. 

[57] Keshavananda Bharti v. State of Kerala, (1973 4 SCC 225, ¶ 1473. [Hereinafter Keshavananda].

[58] Kihoto Hollohon v. Zachillhu & Others, AIR 1993 SC 412.