Why we must show restraint

Does holding elections alone constitute democracy? Or is there a crying need for deeper structural reform?

The Republic is witnessing unprecedented scenes of political and constitutional conflict -- not unexpected considering that the national elections are fast approaching. However, if one particular trend stands out across constitutional institutions, it is the abiding theme of how institutions under the Constitution are far from exercising restraint.

Conflicts between agencies and institutions with varying constitutional roles is not at all a bad thing. In fact, such conflicts inherently give rise to the political check and balance that the Constitution envisages. Which is why those who hold forth on how institutions must work with one another and avoid conflict do not get the critical value that such conflict brings about. When a state government stands up to the investigating agencies from the Centre, it is not necessarily a bad thing. When the central investigating agency approaches the Supreme Court to intervene, it is a great development — the right forum to resolve the issue is indeed considered worthy of being approached for an unbiased intervention.

Yet, it is important to remember that a perpetual state of conflict is not a good thing. Inter-institutional conflict that arises out of an institution playing its envisaged role is great, but conflict arising out of an institution that is abusing its role is not good at all. Indeed, one can have serious disputes about whether there is abuse at all, and often constitutional courts have to resolve the dispute. 

A vital facet of managing conflict in a statesmanlike and mature manner is the exercise of restraint by institutions and those at the helm of the affairs. Look around and you may find a near absence of restraint in the conduct of affairs. The absence of restraint can be seen from so many examples.  

When the founding fathers desired that the view of the Speaker in Parliament certifying that a draft legislation is a “money bill” should be regarded as final, they believed that a person worthy of holding high office would exercise the restraint necessary to decide that the Rajya Sabha need not debate the law. History has shown us that this faith lies belied.

When the Republic was founded as a true democracy and yet internal democracy was suspended for members of the armed forces, inherent in the structure was a belief that the leadership in the armed forces would build an inherent system of restraint in how this protection would be used. Yet, the system of orderlies (now termed “sahayaks”, bordering on slavery) continues with impunity. 

When the army was indeed made subservient to the democratically elected government, the expectation indeed was that the leadership would exercise restraint and stick to its turf. Indeed, the leader of the army is in the news every other day, not for being the window for civilian society to peek into the armed forces, but mouthing opinions on matters ranging from social trends to foreign relations.

When governors were empowered to invite a political party or a coalition to form government, or when they were empowered to declare upon a broken state of affairs to warrant recommending President’s rule to overthrow a democratically-elected state government, inherent in it was the belief that someone holding this high office would take decisions with restraint. This expectation stands belied through the history of the Republic.

When the power of judicial review was conferred upon constitutional courts, inherent in it was the belief that judges would exercise restraint and never want to be IAS officers taking executive decisions that determine the fate of society and its members. When Article 142 empowered the apex court to issue any order it desires to render complete justice, never was it envisaged that the provision would create a unique jurisdiction to legislate, declare and enforce law — a mash-up of separate powers.

When Parliament empowered regulatory agencies to exercise legislative, executive and quasi-judicial roles all at once, inherent in it was the belief that those manning these institutions would exercise restraint in how they play out these roles in different spheres and that they would segregate these functions as a matter of internal discipline. This expectation stands belied uniformly.

As the Republic races headlong into election mode in its seventieth year of existence, it is time to introspect on whether holding elections alone constitutes democracy or if there is now a crying need for deep structural and architectural reform in the functioning of various institutions that collectively constitute our democratic Republic.

The author is an advocate and independent counsel. Tweets @SomasekharS