Direct Democracy: A Protracted Process or a Prevalent Panacea?

Authored By:

R. ARUN KUMAR

Department of Labour and Administrative Law

Chennai Govt. Law College, Pattaraiperumpudhur, Chennai


ABSTRACT

On hearing the term “Democracy”, the first thing that flashes in our thought is the greatest personality of all times in the U.S. history, Abraham Lincoln and his well-known phrase regarding democracy, which still has its own relevancy in this modern era. Secondly, which hits our mind regarding the success of democracy are two countries, namely, Switzerland, the finest democracy and India, the largest democracy. In this paper, I would be glad to link a bridge between the two democracies in what way these two approach democracy. As we all know there are two types of democracy (Direct and Representative Democracy). Democracy solely means the participation of the population in determining their governing bodies and governing policies. The criterion which splits the democracy into two is the quantum of contribution by the people towards governance mechanism. Apart from this division, a third form of democracy emerged called Semi-Direct Democracy, which is prevalently followed by most of the counties across the globe.

One cannot take it for granted that all democracies are effective democracies, leaving behind the qualitative and quantitative participation of people. Each technique of Government stands on their own merits and demerits. The reason behind the author to specifically emphasis on the term “technique”, instead of “form” of government, is that a government cannot run a nation solely based on a single mechanism, either direct or indirect. It should always be a mixed bag of both or should be termed as so-called Semi-direct democracy. It is a known fact that either of these democracies can’t survive exclusively without the existence of another. On one hand, for every Indirect democracy, there must a spark of ignition of direct democracy. On the other hand, a government which run solely on Direct democracy is not for found, some essence of representative democracy is forcibly required, to balance the tripod stand between the emotional people, intellectual at the same time greedy government and rigid constitution. If we take Switzerland, for instance, they are not fully based on direct democracy, they them self refer as Semi-direct Democracy. As far as my limited knowledge only Swiss is considered to be the successful nation which has direct democracy as a major tool, especially Swiss Cantons of Appenzell Innerrhoden and Glarus.

On coming to Indian Democracy, the Constitutional Drafters were very delegated in their approach in determining the technique which needs to be induced to a population explosive country. It is a well-known fact that India is not a direct democracy and the reason behind this is the demographic feature of the country. Drafters also sensed that there would be a probability of misuse of power by the bureaucrats and political parties in the near future. So they thought of making India as a Quasi Democratic country. The power cannot be totally given to the hands of each and every people as it would certainly lead to chaos, nor can be completely taken away from the people. So the makers thought that it would be better it makes India stand in the centre between direct and indirect democracy and further paved the way for the people to enjoy the fruitfulness of democracy, not by referendum or plebiscites, but through the doors of Judiciary.

The author would like to compress his paper within the below-said limits:

1. Whether Swiss is successful in reality in effecting the direct democracy or the government has compromised with other features of democracy in carrying out the direct democracy alone? (For example, restricting the liberty of people on Sundays, etc).

2. Does India fake herself before the global arena that it is the largest successful democracy?

3. Does population is necessarily a hurdle in effecting the democracy?

4. Is Indian Judiciary with Writs, Judicial Review, and PIL considered as an Alternative for Swiss’s Referendum, Popular opinions or Plebiscites?

5. Can Independence of Judiciary fit enough to bridge the lacuna of Direct Democracy?

The author would also like to deal with the landmark referendum process like BRIXET, Swiss Constitution reconstruction referendum in 1874, 1992, etc, and how far the Indian electorate collegiums go up with the system of Plebiscites or referendum.

KEYWORDS:

Democracy, Referendum, Plebiscites, Demography, Quasi- Democratic, Judiciary.

INTRODUCTION:

Bharat is usually admired and supported for holding the character of the world largest successful democracy, amid having diversity in diversities. This acknowledgement, on the one hand, is true from the global perspective, but on the other hand, when seen from the domestic lens, at many a times India steps down from its democratic agenda. In the recent times, the concept of democracy in India has undergone a centrifugal path moving away from the constitutional regime. To support this argument, there an ‘n’ number of examples starting from the 1970s emergency period[1] which was obviously an evil centric move compared to the other 2 precedents[2] and the very recent revocation of special status to the state of Jammu and Kashmir by revocation of Art.370 in a haste manner[3]. These apart, the author would like to strictly constraint the paper with the abstract and focus mainly on the two countries namely India and Switzerland[4]. The former one represents the representative democracy and the latter is the pioneer for direct democracy. From the title, it is evident that the baseline for the paper is just the merits and demerits of democracy, additionally, the paper also throws light on issues like relevance on direct democracy in the Indian system, what are the hurdles to be faced in such relevance, the real compromises that Switzerland undergoes in executing the direct democracy, the role of the judicial system in these two democratic countries and other related issues.


DEMOCRACY- AN OUTLINE

It is well known that the effective form of government for a country is the Democratic one which supersedes all other forms, which is globally accepted after the cold war[5] between USSR and US, a clash between communism and democracy, in which the latter showed permanent supremacy over the former, thereby depicting communism as an inefficient form of government. Universally there are two types of democracy namely, direct and indirect (representative) democracy. As already mentioned above, Switzerland can only be quoted as the best example for the former, this is because it successfully implements the mechanism of direct democracy to its country a whole. There are many more examples where the countries inculcate this, but only at the grass-root level. On the other side, for a representative form of democracy, there are a hand full of examples like US, India, Great Britain, etc, Democracy is the form of government in which the supreme power lies in the hands of the people. In a democratic country, every citizen has one vote that can be cast in favour or against the government policy. Further, in a democracy, the response of the citizens acts as the foundation of the government. The following are said to be the basic components of the democracy: Equality in voting, Effective participation, enlightened understanding, Citizen Control of the agenda, Inclusion (must be open to all citizens within a nation).

To be brief about the definition, the Direct Democracy (pure democracy or participatory democracy) means where the people have the ultimate sovereign power, they directly participate in the decision-making process along with the government, thereby there is no intermediate like representatives between the people and the government in running the country. There are a number of mechanisms in carrying out the direct democracy: referendum, public initiative, recall, plebiscite[6] and Landsgemiende[7]. This type of democracy is common in class elections and other small organizational meetings. Ancient Athenians[8] used direct democracy. They indicated their vote by using coloured shards of pottery. In this form of government, every law, policy or bill is passed only when voted on by the citizens of the country. Here, all the people and government come together, raises issues, enter into discussions to come up with a decision which is agreeable to all. So, the citizens of the country have a direct say in the formulating laws and the affairs that influence them.

The Indirect Democracy means that the people instead of taking a direct role in decision making they elect a competent person as their representative to voice out for them in the decision making process. This middle man is because, for a country with a huge population, it a nearly impossible idea to follow direct democracy. A politician is elected from each constituency who represents the people who voted for him in the parliament. It relies on free and fair elections wherein those who are currently ruling have a just and fair chance of losing. Hence, the elected politician can be removed from the office and made accountable for the work performed by them for the community. Indirect democracy too has many forms: (i) Parliamentary or Cabinet Form; (ii) Presidential Form; (iii) Unitary Form, and (iv) Federal Form. There are many mixed forms of indirect democracy. It also exists with the Electoral College, as people do not vote directly for president but for a slate of electors. In the upcoming parts of the paper, this depth analysis of the democracies in India and Switzerland will be discussed.

SWITZERLAND MODEL:

Switzerland has a rough population about 85.7 lakhs and a total area of 41,285 sq.km which can be compared to West Bengal and Haryana respectively. It has diverse language with German (60%), French (20%), Italian (8%) and Romansh (1%). Also it holds 24% of its population as foreign migrants.[9] Switzerland is known for its distinct federalism with 26 cantons and extensive form of direct democracy. It has always keep a check and balance mechanism between people and political authority; government and parliament; Confederation[10] and cantons. It tries to keep up with the following agenda that, no one should be with more power; no one is a permanent head; no permanent president; no one should be always in majority/ minority. As said earlier it has a distinct federalism, 1848 Constitution delegates power to cantons over the matter which is not expressly allocated to the federal government, this means that the subject which is only expressly enshrined under the constitution is for the confederation, and the power over the remaining subjects are exercised by the respective cantons. The Switzerland Constitution makes the cantons sovereign over its own territory thereby giving freedom to have its own Constitution, legislative and courts.

It will be appropriate to refer to the Switzerland constitution as a dynamic one, for which even a whole revision is also possible provided that the peoples’ support during the initiative is satisfied. Almost 6 to 7 times, its Constitution has been amended, recently in 1999. Besides federal laws or canton laws, even for the constitutional amendment, the people occupy the ultimate position in decision making. With 6 parts and 196 provisions, Switzerland Constitution has the following salient features: written, Rigid, provisions for Bill of Rights, Social Goals, Purpose of the State, Democratic Republican Constitution, federalism, mixture of parliamentary and presidential form of government, collegial executive, lack of independent and powerful judiciary, dual Citizenship and others

Like other countries, it has a bicameral legislature: 1st chamber[11], whose members are elected by the people in proportionate with the population of each canton; 2nd chamber[12], where the members are equally represented among cantons which each having two representatives, except in the case of half cantons[13]. Besides this feature which most of the so-called democratic countries possess, the striking factor which Switzerland holds is the different modes of direct democracy.

DEMOCRATIC MECHANISM:

The unique processes carried out in Switzerland or in any other direct democracy are popular initiative, referendum and recall.

Popular Initiative: It is an instrument of positive action, introduced in 1874 amendment, in which a voluntary initiative was taken by the citizens seeking concern over a new law passed or any amendment in any existing law or even for partial and whole revision of Constitution. It is of two types; formulated and unformulated Initiative. For any amendment in the constitution either wholly or partially and for a proposal related to international treaties[14], at least 7 citizens must launch such initiative along with 1, 00,000 signatures of citizens within a period of 18months.

In the case for any amendment to the federal laws or canton laws, the initiative must be supported by 50,000 signatures of citizens within 90 days. After this, the government will scrutinize the amendments and lay the proposal before the cantons and people for voting. If the majority of cantons and people vote to favour the proposal then the amendment comes into effect. If the proposal has been turned down then the existing law will continue to operate.

Referendum: If there is any constitutional amendment and newly passed federal laws or amendment for the same, proposed by the government, then the process of mandatory referendum comes into play, in which a double majority is required to make that amendment into effect. This mandatory referendum was introduced in 1848 constitution and continued in1874 constitution. The mandatory referendum is also applicable to international treaties and organizations. The other side citizen with 50, 000 signatures within 100 days or 8 cantons call for an optional referendum, in which a simple majority is required, this process of referendum was first introduced in 1874 constitutional amendment. Till now 180 referendums had been conducted and 78 had been unsuccessful.[15]

Recall: It is initiative were the citizens are unsatisfied with the conduct and working of the present government and vote to overthrow the same.

DID SWITZERLAND COMPROMISE ITSELF?

In spite of these unique features, is Switzerland really compromising in other factors in order to shine solely in direct democracy? If we analysis deep into the statistics and the rationale behind the process, we can list down many lacunas which the Switzerland skips to consider.

Firstly, the concept of a simple majority in voting. 50%+1 is a basic standard of majority for all types. It is inappropriate to place the constitutional amendment proposal, federal or canton law proposal and international treaties all on the same footing and to have a common prerequisite of simple majority.

Secondly, since on an average about 15 voting process will be conducted combining all the three-level annually, the enthusiasm to vote among the people is minimizing day by day. Each time when the polls are announced the participants had to make them self aware of the proposal and allocate a time for polling. It is impossible for the majority of people to spend time in voting frequently. The law demands a simple majority but it is unfortunate to say that the participation doesn’t show even 50%. At present, the average voter’s turnout is just 45%. In 1990, 40% was the turnout. In the history of Switzerland polls, the highest record is 79% (proposal on the country’s access to the European Economic Area). In the case if the average turnout is just 45% then how the decision reached could be considered as the opinion of the majority population. This is a serious flaw which needs to be addressed.

Thirdly, the vote is not a right anymore but a responsibility, that too not a mandatory one. Too much of anything is good for nothing; this applies even for democracy. Repeated polling has made it to lose it importance towards the nation-building process.

Fourthly, even slight or negligible majority is considered without any review, whereas minority which is close to 50% is abruptly dropped. There are many instances for this, one such is, and in 2002 a proposal was laid to curb the number of asylum seekers into the country, where 50.1% of the electorate rejected the proposal, which is a difference of just 3000 persons.[16] Another proposal conducted in 1949 whether to reintroduce the direct democracy system, after the suspension of fundamental rights during the World War II, fortunately, this poll was the turning point for the remaining history of Switzerland as around 50.7% voters favoured the reintroduction.[17]

Fifthly, emotions superseded rational mind. The author likes to convey that the voters, not every time intellectually prepare themselves before voting. In most cases they rely on others opinion, otherwise take an emotional strand and cast their vote. Not all are knowledgeable over the subject laid before them. Matters of public policies are good to receive public polls, but there are matters like; international relations, minority rights, financial matters, etc. which has nothing to with emotion but requires a rational analysis.

Sixthly, undermining the intellectual and diplomatic mind in decision making. The ultimate sovereign or the veto power is with the people. It is said that the constitution allows the people to correct the sins of omission of government and the Parliament. If this is so then what authority would check errs of the people. Even the judiciary plays a limited role in federal laws. Role of judiciary will be discussed in detail in the latter part of the paper. At least the government must allow itself to review the public decision in certain matters of the highest importance. If we take proposals like granting voting rights to the women and joining as a member in UN, the people took 2 attempts each for getting majority. If these subjects were under the control of bureaucrats then it would have been effective for the development of the country

Seventhly, direct democracy dragged the developmental steps of the country. A best example that can be cited is that the voting rights for women in February 1971. Till then only men above the age of 18 years are eligible to vote. This right has evolved only in a second referendum, where the first one in 1959 was turned down by a 67% majority of men voting against the proposal[18]. Where other countries relatively less developed that Switzerland has achieved this milestone, the latter struggled to reach it. Another instance is that Switzerland took 4 attempts to impose Value added tax (VAT) over the commodities. Same problem with proposal to join in UN took 2 referendums and succeeded in 2002.[19] There were several attempts to bring down the voting age to 18 years of age.

Eighthly, opinions of minority communities are overshadowed by majority communities. In a proposal related to minority communities, their part in the polling will be absolutely less, in these cases, the proportion of voting of that concerned community should be given consideration more than the votes of normal voters. In the example of women’ voting rights, it was the men electorate were the decision-makers. In what way it is logical to confine the minority community to contribute to their own related subjects? Moreover, the majority is not obliged or doesn’t have a sense of responsibility towards the minorities

Ninthly, it important for the voters to be knowledgeable and aware of the proposal laid before them. The state also has the duty, not only to make the people informed, but also to be correctly informed. It should protect them from misinformation via media and political parties. Keeping the population aware and alert is practically impossible.

Tenthly, the process is cost-intensive. On an average around 15 times annually the people used to vote. The expenses would be towards the polling stations, ballots, postal and electronic services, transportation, awareness to the people during each polling period. This would lead be bulk of expenditure for each proposal. Spending is not a matter of concern but the resultant benefit must be at least satisfactory.

Eleventhly, some proposals are complicated to irrelevant to understand. To support this, how many energy-producing windmills were needed? Blocking EU citizenship in acquiring Switzerland jobs. These are to be decided by experts and learned officials and not by the normal people.

Despite these compromises in order to achieve the fruitfulness of direct democracy, the government of Switzerland in the due course of time has upgraded in many arenas to increase the efficiency of its mechanism:

As before said, participation by the voter in the polling process is decreased day by day, the government has thought of a convenient way of polling through postal ballot and e-voting. Since the average turnout is just 45%, about 90% of them use these two means of voting. Therefore the polling booths will be empty during the polling day. These measures have been taken up to make the voters active in the polling process and it has been successful in doing so.

The Switzerland government has always been futuristic in their approach, that is to say, they have the practice of scheduling on what proposal the voting is to be done and their respective voting dates much earlier. For example, till 2034 it has fixed all the polling dates. This will be convenient for the public so schedule their time and effectively cast their votes without any hindrances.

Recently the government has taken effective measures to review the majority opinion of the population in certain important areas like proposals affecting the constitution and International relations.

INDIAN SCENARIO:

India’s contribution to democracy dates back to the Buddhist period where the scripture Pali[20] speaks about the democratic process of choosing their own leader to represent him before the king. Other relevance are Panini’s Sanskrit Classic Ashtadhyayi[21] and Kautilya’s Arthasastra.[22] On coming down to south India, a grass-root democracy prevailed during the 9 A.D. namely the Kodavolai System, which introduced by the Chola Dynastry[23]. This system is very simple where the names of eligible candidates are written on the flag (leaf of palm tree) and shuffled in a kodam (pot), thereby it gets its name kodavolai. The number of persons to be elected for each is announced and a random kid is called to draw a leaf. The name on the leaf is the person elected for that post. The process continues. It is usually conducted in the temple premises or under the tree with the village people as witness. Though this process is more of a chance or probability, it had introduced the system of secret ballot and a mechanism where a people mutual agree on a common system of election.

India had been influenced by the British Colonial rule in all its sectors and election and political system is no exception to it. Fortunately, the crown didn’t leave away its footsteps of monarchy in India; rather our forefathers were clever enough to inculcate the democratic process inspiring from the global examples. The element of Democracy is enshrined in the Preamble at the earliest which represents that drafters were focused on the Democratic India.

The political system and the democratic processes has been expressly mentioning in the Constitution of India, 1950, the Representation of peoples Act 1950 and 1951. The constitution of India makes provision for the manner of election of the president[24], Vice-President[25], the composition of Parliament[26], mechanism carried out in parliament, Universal adult suffrage for voting[27], defection laws[28], provisions for MLAs MPs and other representatives, disqualification of those representatives and much more. Once any person who makes a glance through these provisions, she or he may get to a conclusion that India has a pure form of representative democracy and it is theoretical strong of its idea.

The following discussion would be on the pros and cons of India’s system of Democracy, it can also be taken as a comparative analysis between the Switzerland and Indian democracy, that is, what one lags from the another and the vice-verse. India is known for holding the tagline of largest successful democracy showing the world that democracy can be carried out even in remote areas like hill stations, enclaves in other countries, islands and other terrains which are geographically difficult for access and communication. Even when there is a negligible strength of voters in those areas, the Indian government didn’t neglect them but strived hard to restore their rights back. Another striking feature is that the population across the country, where state-wise or constituency-wise or scheduled area wise or any other geographical criteria, had been proportionally represented according to their respective strength. That representative would voice out the thoughts of their population, who chose them, and works for the welfare for their population.

These positives apart, does India fake herself before the global arena that it is the largest successful democracy? The answer to this question is quite complex, India is the largest democracy without any doubt with 1.38 bn population along with diversing features, but whether it is a successful democracy is a matter of concern which the author reveals in the succeeding paragraphs.

India in many events had breached the constitutional morality and has gone against the peoples will without consulting the public, NGOs, opposition parties, bureaucrats and even their own ruling party members. The first example is the unforgettable emergency period proclaimed by then Conditional PM Indira Gandhi[29] through the then President[30] to suppress all the opposing elements by throwing detention laws towards the rivals, banning censorship to the media, unprecedented mass sterilization and other evil acts. There have been many allegations that the PM has done this for her own benefit and to sustain the seat amid oppositions. Even she has herself admitted and justified the above acts in a media interview[31]. Though there were 2 emergencies as precedents this was considered as a period of terror because total fundamental rights have been put in a dark room till revocation. This had let to some serious amendments[32] in the whole constitution of India and in the art.352 itself.

Another instance is that the revocation of art.370 of the constitution of India abrogating the special status of the state of Jammu and Kashmir and thereby bifurcating them into two UTs[33]. During the partition of India and Pakistan, there were referendums conducted to many Muslim ruled territories like Hyderabad and Jammu regarding their autonomy. The former chose to incorporate with the Indian government but the latter chose to be an autonomous state. But in the due course, because of the undue pressure from the Pakistan government and army, the king of Jammu approached India for safeguarding them for Pakistan. Using this opportunity India drafted agreements thereby making special provision for State of Jammu and Kashmir under the constitution of India. Now in the process of revocation of art.370, no such referendum was conducted, infact the state legislative assembly dissolved much earlier to enforce such an act without any hurdles.

Next is the issue of demonetization in the year 2016, this act requires an Act of parliament or to the minimum extend an ordinance from the president as enumerated under section 26(2) of the RBI Act, 1934. Already in 1978, there was a demonetization banning Rs. 10000 notes as legal tender which was backed by the ordinance of the then President. Now the 2016 act was just a haste move over a midnight without any legal backup or even any caution or clue, which ultimately led to suffering by the population. Later in December 2016 an act was passed legalizing the act.

Likewise, there are a number of incidents to demonstrate the ruling parties’ arrogance where they would go to any extent to make their work done. In all these cases the constitutional morality is downed thereby cheating people. This had an indirect effect on democracy.

The next thing, according to the author, that takes away the democratic principles is the concept of forming a coalition government after the election. Whenever a single party fails to prove the required majority in the house, the Governor of the concerned state or the President of India, as the case may be, would call upon the parties if they could form a coalition to fulfil the required majority and became eligible to run a government. This is a concept which makes an illusionary democracy for the people on one hand and allows even the minority party to run the government on another hand, even if they have majority numbers than any other single party. Here a huge instances of backstabs, revenge, vengeance and selfishness occur. The motive is to only to capture the government but not to uphold the true democratic value and to fool the people. A classic recent example that can be referred to is the 2019 Maharashtra political displacement between Shiv sena[34], INC[35] and BJP[36]. Though the BJP has the highest number of votes but fail to earn the house majority, followed by Shiv Sena and INC. there were talks regarding the coalition between BJP and Shiv Sena, but due to the misunderstanding between them in sharing the CM post, the Shiv Sena dropped the BJP offer and joined with INC and proved majority in the House, thereby the former took the CM post and the latter was given the Deputy CM post. INC was not in the picture until the split in the earlier coalition. Here the party having the highest votes is left but the party with the least votes was allowed to form a government.

Is this the nature of democracy?

Another problem is the ambiguity prevailing around the concept of defection and its proceedings. In Tamil Nadu state assembly election was held in 2016 AIADMK[37] won with an overwhelming majority. Soon the CM died and the party was split into 3. There was high tension among these 3 such as which will carry forward the legacy of the parent party, party symbol problem, etc. Current Hon’ble Deputy CM was charged with an anti-defection law in 2017 for joining with the current party along with 10 other MLAs (known as MLAs disqualification case). No action was taken by the speaker or the court till 2019, now recently in 2020, the Supreme Court of India asked the government and speaker of the house why no action was taken for disqualification in the MLA case. It also observed that the Anti defection law under the Tenth Schedule was outside the jurisdiction of Courts and only Speaker as the power to adjudicate under the said schedule[38] and directed the Speaker to initiate the proceedings as soon as possible. Now the question is, whether the delay in taking action against the offender is reasonable or pardonable? From 2016 to till now no single proceeding is initiated, except issued notice to MLAs, by the speaker which is a ruling parties’ post. In 2021 the next assembly election will be conducted making this case irrelevant to be discussed. Is this a facet of democracy?

Next is the logic behind the post of Speaker and Deputy Speaker in the lower house. The author always concerns why that position should be from the ruling party. We all know that Speaker is the king of the house who has the ultimate decision-making power over matters taking place within the walls of the house, even the judiciary can’t interfere into the matters of the without due caution. With those extraordinary powers, why should he be selected from the ruling and not as an independent post? In the previous example, if the speaker was an independent person then the case would have been accelerated much faster than now.

Besides these there a lot of irregularities prevailing in India which outsiders fail to recognize but we as citizens recognize it, but forced to live along with these disparities without any other options.

ROLE OF JUDICIARY:

In this part, the author would like to analysis the judicial systems in both the countries, thereby deriving a conclusion as to the status of the judiciary in both direct and representative democracy. In India, the separation of power has been expressly designed under the Constitution of India under the DPSP chapter[39]. The Constitution of India has equally divided the power among the three organs and reduced to a greater extent the overlapping of the jurisdiction of the three. This helps the organs to enjoy a regime of autonomous. It is a seasonal character wherein which each organ dominates the other two at some point of time. For example, executive dominates the other two during the emergencies and during the president’s rule in states. Likewise, Judiciary dominates the other two with the mechanism of Judicial Activism thereby interfering into the function and powers of other organs, eg., striking the 99th Constitutional Amendment as unconstitutional. This gives the judiciary an extraordinary power over the others in rare cases with due care and caution. Besides these judiciary has been given adequate independence in the constitution itself as well as in a bundle[40] of Supreme Court rulings including Indira Gandhi v. Raj Narain[41]. Independence of judiciary is given to an extent that the appointment of judges is made through the traditional way of collegiums with senior Supreme Court judges as a panelist. Judges as a whole appoints judges and recommends to the President who exercises the executive power and makes the appointment. In a bundle of above-said cases, the constitutional validity of the colligium system was challenged and huge frictions arose between the executive and the judiciary. Finally, in 2015 the Supreme Court struck down the NJAC Act 2014 and 99th Constitutional Amendment ruling that independence of judiciary is infringed[42]. This is because the independence of Judiciary is a basic structure of the Constitution of India and as per Kesavanantha Bharathi v. State of Kerala[43] basic structure can’t be amended.

Secondly, the Supreme Court and the High Court of the states has Suo moto power to issue Writs under art.32 and art.226 respectively. The Constitution enshrines 5 writs under the Judiciary thereby it can regulate the mistakes or malfunctioning of the same or another government department. There are five types of writs –Habeas corpus, Quo warranto, Mandamus, Certiorari and Prohibition.

Thirdly, the Supreme Court is considered as the guardian of the Constitution. It has the judicial review power under Art.13 to verify the constitutional validity of the laws passed by the parliament and state legislature. This article helps the court to make a check and balance mechanism over the legislative functions.

On coming to Switzerland, the judicial is considered as a third organ and its power had been enormous confined by its Federal Assembly. In both the countries, people are ultimately considered as the sovereign. The only difference is that in Switzerland people exercise their sovereign power directly whereas in India it is indirectly used. Unlike India, Switzerland Federal Supreme Court doesn’t have the Judicial Review power over the federal laws, but has the power to make the canton laws invalid if it violates the provisions of the Federal Constitution. This is one of the serious drawbacks for the independence of Switzerland judiciary. The justification given for this lack of reviewing power is that federal law comes into force only after the scrutiny exercised by the people.

According to Art.190 of Switzerland Federal Constitution, the Federal Statute and International laws are binding on the Switzerland federal Supreme Court. Courts are not empowered to Review Constitution and Federal laws, but can suspend the Federal statutes which are in conflict with the international laws.

The judges of the Supreme Court are elected for a period of 6 years by the Federal Assembly and not by themselves. Though this imparts a sense of accountability of judges towards the Legislature, on the other face it has undermined the independence and usually, in such conditions, the judges will be unduly influenced by the government and are assumed to be biased. But in India, they are accountable only to the Constitution of India and not even to the democratic people. Art. 60 of Switzerland federal Constitution says the Supreme power of the Confederation is with the Federal Assembly.

There arises another issue, whether Switzerland’s Referendum, Initiative takes another facet in India through Writs, PILs, Judicial Review? In other words, whether the latter is considered as an alternative to the former? Does the Judiciary fill the lacuna of Direct Democracy in India? The answer to this is a partial yes. This is because what Switzerland doesn’t have is the strong feature in India, through PIL under Art. 13 and writs people can directly involve in deciding the fate of the laws passed by the parliament and State Legislature. There are many examples to support this point where cases are filed challenging the validly of the Acts and subsequently the Higher Courts have favoured the petitioners. The author’s affirmation is partial because to succeed against an Act of Parliament is a difficult process, requires proper legal support. This mechanism is just optional and not mandatory, so only if the people take voluntary steps it is an active process.

CONCLUSION:

In this paper, the author strived to cover the factors related to democracy and to come up with a solution on which is the best-serving Democracy. Each country or to be wider each technique of democracy as its own pros and cons, a straight answer yes or no is always impossible in the political science, every answer is correct, but it doesn’t mean it will be correct always. Its success depends on various factors like the demography, geography, culture, tradition, religious belief and a lot more.

On coming to the question of why India doesn’t opt for the Direct Democracy, the answer is obviously the diversity. The factors with restrict in this matter are ever-increasing population, illiteracy difference among the states, lack of awareness about the political system and mechanism. People across the country are diversified on the basis of religiously, personally, communally, territorially and linguistically, if these people are allowed to vote directly on the political issue the resultant output will be adverse to the national interest.

There are few common up-gradation reforms for both countries to take their nation towards an eternal path. Those are summed up as follows

1. Democracy and Federalism need concordance which means the resolution of political conflicts and difference of opinion through negotiation and compromise.

2. In both the democracies, a responsibility of mutual trust is necessary between the trios: Government, parliament and Citizens. Loss of trust results in difficulties in implementing reforms, negative effects and it is a compromise in democracy itself

3. Transparency in information and communication is must from the government to the public in order to get the trust from the latter

4. Comprehensibility and accessibility of information and legislation is required for the public to understand the government measure and thereby to cast a legit vote. In other words, the communication between the two must be in a citizen-friendly language.

5. The state should strike hard to promote values such as honesty and humbleness, i.e., the state must polite and straight enough to admit its mistake and make up a mindset that mistake does happen.

6. Both the citizens and the state need to cultivate the trait of tolerance and ability to listen to the other and act accordingly.

7. Finally, unity is the determining factor for the welfare of the state between citizens and government, between citizens and citizens, between political parties and other

2.Again into the earlier question which technique is better? What is the answer for the title? DIRECT DEMOCRACY: A Protracted Process or a Prevalent Panacea? The answer is that one cannot survive without the other and also anything beyond the Limits… Stares.... A mixture of both is necessary to run an effective nation. Though Switzerland is considered as the purest form of direct democracy, they themselves refer them as a Quasi- Direct democracy. This is because the members of the Federal council who represent their country to the world are not directly elected by the people but by the Federal Assembly. Judges too are elected by Federal assembly. So there is definitely some amount of representative democracy is required in a pure direct democracy and some amount of direct democracy is required in a pure representative democracy. If the opposite happens the people will control the state in the former and on this side, the state will control the people in the latter. So, none exists without the other. The author’s concluding remark is that India should gradually increase the proportion of direct democracy in its political system to gain the trust of people in the governance of the country.

REFERENCE:

1. V. N. Shukla, the Constitution of India, Eastern Book Company, Lucknow, 13th edition, 2017.

2. S. K. Mendiratta, All you want to know about India Elections, LexisNexis Butterworths Wadhwa, Nagpur, 1st edition, 2009.

3. Rhea Banerjee, Comparative study- Direct democracy in Switzerland and indirect democracy in India, International Journal for Research and development, bolume 3, issue 7.

4. Rakesh Kumar, Problems and prospects of Indian democracy, International Journal of Law, Volume 3; Issue 4; July 2017; Page No. 95-97.

5. http://www.athene.antenna.nl/MEDIATHEEK/KOBACH-1.html

6.https://houseofswitzerland.org/swissstories/history/way-modern-direct-democracy-switzerland

7. https://www.weforum.org/agenda/2017/07/switzerland-direct-democracy-explained/

8.https://www.swissinfo.ch/eng/directdemocracy/full-powers_how-swiss-direct-democracy-made-a-comeback-after-authoritarian-rule-/45214494

9. https://ejpr.onlinelibrary.wiley.com/doi/abs/10.1111/1475-6765.00377

10. https://www.thelocal.ch/20180523/how-switzerlands-direct-democracy-system-works

11.https://www.politicalsciencenotes.com/switzerland/21-salient-features-of-the-swiss-constitution/1426

12.https://www.civilsdaily.com/constitution-of-switzerland-features-comparison-with-indian-other-constitutions/

13.https://www.independent.co.uk/news/long_reads/democracy-history-athens-greece-politics-people-society-a8345136.html

14. https://ir.stthomas.edu/cgi/viewcontent.cgi?article=1108&context=ustlj

15. https://www.britannica.com/place/Switzerland/Justice

16. The Constitution of India, 1950.

17. The representatives of the people Act,1950.

18. The representation of the people Act, 1951.

19. The Switzerland Federal Constitution.

20. Interview of Indira Gandhi:

https://www.youtube.com/watch?v=q8aETK5pQR4&feature=youtu.be

[1] The Emergency period refers to a 21 month period from 25 June 1975 to 21 March 1977 when Prime Minister Indira Gandhi had a state of emergency declared through President Fakhruddin Ali Ahmed under Article 352 of the Constitution of India because of the prevailing "internal disturbance", [2] First national emergency was declared in 1962 due to China war and next is in 1971 amid Pakistan war [3] Art, 370 and Art.35A were revoked on 5th August 2019. [4] Switzerland, officially the Swiss Confederation, is a country situated in the confluence of Western, Central, and Southern Europe. It is federal, republic and democratic with 26 cantons. [5] The period is generally considered to span the 1947 Truman Doctrine to the 1991 dissolution of the Soviet Union. [6] Referendum and plebiscite and interchangeably used but there is slight difference, that is the former is the proposal for which the voting is made while the later is the voting process itself. [7] It is the voting process by the showing of hands. Still followed in the canton, Appenzell Innerehoden. [8] Conducted direct democracy during sixth century BC in the Greek city-state. [9] https://www.weforum.org/agenda/2017/07/switzerland-direct-democracy-explained/ [10] Refers the Switzerland as a Union of cantons with federalism. [11] Referred as the national councils [12] Referred as the council of states [13] A half canton is a canton of Switzerland with only one seat on the Council of States contrary to a normal canton that has two seats. There are about 20 cantons and 6 half cantons in Switzerland [14] Earlier it required only 50,000 signatures within a period of 90 days. [15] http://aceproject.org/regions-en/countries-and-territories/CH/case-studies/esy_ch02 [16] https://www.thequint.com/hotwire-text/switzerland-rejects-eu-proposal-to-take-more-asylum-seekers [17] https://www.swissinfo.ch/eng/directdemocracy/full-powers_how-swiss-direct-democracy-made-a-comeback-after-authoritarian-rule-/45214494 [18]https://www.swissinfo.ch/eng/directdemocracy/elections-2019_who-can-vote-in-switzerland--who-can-t-/45229922 [19] https://www.admin.ch/gov/en/start/documentation/media-releases.msg-id-5829.html [20] The Pāli Canon is the standard collection of scriptures in the Theravada Buddhist tradition, as preserved in the Pāli language. It is the most complete extant early Buddhist canon. [21] Sanskrit treatise on grammar written in the 6th to 5th century BCE by the Indian grammarian Panini. This work set the linguistic standards for Classical Sanskrit. [22] Kautilya was the key adviser to the Indian king Chandragupta Maurya (c. 317-293 B.C.E.), who first united the Indian subcontinent in empire. Written about 300 B.C.E., Kautilya's Arthasastra was a science of politics intended to teach a wise king how to govern. [23] The Chola Dynasty was the greatest among all the south Indian dynasties. They ruled beyond the sea like Maldives Islands and Sri Lanka which shows that they had very efficient as well as huge naval power. [24] Art.54 of the Constitution of India, 1950. [25] Art.66 of the Constitution of India, 1950. [26] Art.79 of the Constitution of India, 1950. [27] Art.326 of the Constitution of India, 1950. [28] Tenth Schedule, the Constitution of India, 1950. [29] Indira Priyadarshini Gandhi was an Indian politician and a central figure of the Indian National Congress. She was the first and, to date, only female Prime Minister of India. Indira Gandhi was the daughter of Jawaharlal Nehru, the first prime minister of India. She served as prime minister from January 1966 to March 1977 and again from January 1980 until her assassination in October 1984, making her the second longest-serving Indian prime minister after her father. [30] Fakhruddin Ali Ahmed. [31] An interview with Indian Prime Minister Indira Gandhi by Thames Televisions Jonathan Dimbleby regarding Indian Politics and the crack down on the press while she was Prime Minister. See reference. [32] Constitution (forty-second Amendment) Act, 1976, w.e.f. 3-1-1977 and Constitution (forty-fourth Amendment) Act, 197b, w.e.f. 20-6-1979. [33] Union Territories (UTs) of Jammu and Kashmir, and Ladakh. [34] Shiv Sena is a right-wing Marathi regional and Hindu nationalist political party founded in 1966 by cartoonist Bal Thackeray. [35] The Indian National Congress is a political party in India with widespread roots. Founded in 1885, it was the first modern nationalist movement to emerge in the British Empire in Asia and Africa. From the late 19th century, and especially after 1920, under the leadership of Mahatma Gandhi, Congress became the principal leader of the Indian independence movement. [36] The Bharatiya Janata Party is the current ruling political party of the Republic of India. It is one of the two major political parties in India, along with the Indian National Congress. [37] All India Anna Dravida Munnetra Kazhagam (AIADMK) is an Indian regional political party in the state of Tamil Nadu and in the union territory of Puducherry. AIADMK is a Dravidian party founded by M. G. Ramachandran on 17 October 1972 as a breakaway faction of the Dravida Munnetra Kazhagam (DMK). [38] Article 191(2), the Constitution of India, 1950. [39] Art. 50, the Constitution of India,1950. [40] S. P. Gupta v. Union of India - 1981 Supp SCC 87 Supreme Court Advocates-on Record Association vs Union of India – AIR 1994 SC 268 In re Special Reference - 1 of 1998 [41] 1975 AIR 865, 1975 SCR (3) 333. [42] Supreme Court Advocates on Record Association v Union of India & Anr [(2016) 5 SCC [43] (1973) 4 SCC 225


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