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When articulating “rule of law”, we must recognise it is often dented by arbitrary, unjust state actions

Chief Justice of India NV Ramana has warned that the right to change governments through elections “by itself, need not be a guarantee against tyranny”. He underscored that recognising citizens as the ultimate sovereign and qualifying as a “properly functioning democracy” necessitated public discourse that is “both reasoned and reasonable”. To elections and public discourse, he tagged “criticisms and voicing of protests” too as integral to the democratic process. Executive and legislature too must “assume responsibilities of upholding constitutional values and ensuring justice in the first place” so that judiciary can act as an important check later.

Nothing controversial or unexceptionable here. Post-electoral exercises of political power by elected governments have been a mixed bag, not just in India, but democracies everywhere. A government’s exercise and interpretation of its popular mandate can foment opposition. And there’s no set template for systemic responses in India. From ramming its intent past dissenters, or entering into a vigorous discourse through parliamentary debate and direct political messaging, to facing scrutiny from courts, democracy and its countervailing checks and balances operate through many modes.

Laws like sedition, a remnant of British Raj’s “rule by law” mentality,  enjoying currency in national and state capitals buttress CJI Ramana’s warning about tyranny. The 1973 Kesavananda Bharati judgment enunciating the basic structure doctrine to prevent wayward constitutional amendments had recognised the danger of an elected government turning rogue. The Emergency two years later vindicated SC. The antidote is for both elected and unelected bodies – all the hallowed democratic institutions with constitutional sanctity – to recognise their limits and act energetically and creatively within the due process and procedure.

This would demand governments enact laws that uphold equality and aren’t arbitrary; all sides allow legislatures to function without disruption or short shrift to procedures; judiciary refraining from policymaking; and independent public platforms like media, academic spaces, and NGOs having freedom to question the state. A counterculture of admiration for populists who betray impatience for democratic niceties and bend chaotic collective will is an ongoing challenge. But appeal of the “rule of law” hasn’t dimmed one bit. That’s why dissenting J&K residents approached SC over arbitrary internet shutdowns and harried Bengal BJP took Mamata govt to court for alleged post-election excesses. Let no one stop judiciary from enjoying complete freedom to check governmental power, as CJI Ramana wanted.



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This piece appeared as an editorial opinion in the print edition of The Times of India.



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