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POLITICAL CONSTITUTIONALISM AND PARTICIPATORY DEMOCRACY: READING THE ESSENCE OF THE RIGHT OF PUBLIC PARTICIPATION IN ARTICLE 21 OF THE CONSTITUTION.
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Article Details
POLITICAL
CONSTITUTIONALISM AND PARTICIPATORY DEMOCRACY: READING THE ESSENCE OF THE RIGHT
OF PUBLIC PARTICIPATION IN ARTICLE 21 OF THE CONSTITUTION.
AUTHORED BY -
NAKUL SINGH
Abstract
By the medium of this paper, the author aims to provide in the
introduction the cue which kindled the desire in the author to take up the
topic. The article in the following sections would also attempt to explain the
concept of ‘political constitutionalism’ and its relation with ‘public
participation’ and the reading of the essence of ‘public participation’ into
Article 21 of The Indian Constitution, 1950 and its relevance in the current
times.
INTRODUCTION
The incentive to work on this topic
was kindled in me when I decided to visit the office of the Commissioner of the
Greater Visakhapatnam Municipal Corporation, Dr. G. Srijana, IAS in order to
bring to ma’am’s attention the suspicion which I had of wrongful acts like
prostitution and smoking of Marijuana or Ganja
were taking place in the densely covered garden right in front of the building
I reside in.
To give context, in the year 2014 in
Visakhapatnam post the Hudhud cyclone, my family and I had taken up the
initiative to plant 250+ saplings in the same garden in order to compensate for
the green cover that had been blown away and destroyed due to the strong and
ferocious winds of the cyclone.
In the year, 2022, eight years later,
the garden got densely covered with trees and their branches which entirely
made all the activities happening inside the garden opaque from public gaze. It
was this loophole due to which, anti-social, anti-ethical and injurious
activities like smoking cigarettes, drinking liquor, smoking Ganja and interactions between couples
in obscene and comprising positions started to occur rampantly in the garden.
Taking stock of the situation I
decided to visit the office of the municipal commissioner and bring to her
notice and knowledge the activities which were happening in the garden. Highly
impressed with my initiative who happened to be a member of the public, I was
given credit by ma’am and in order to encourage members of the public raising
their voices and being vocal about their day-to-day localised concerns, ma’am
immediately took action and by the evening of the same day, all the trees and
overgrown bushes and shrubs were trimmed and truncated and lights were
installed in the garden. Additionally, ma’am also went further in proposing a
plan, after receiving inputs from me and my mother, that would convert the
garden entirely into a fitness arena. The proposal was to not even cut down a
single tree but to clear all bushes and shrubs and lay a walking track and
benches and create open areas where the elderly from the surrounding residential
areas could walk, sit or do yoga and breathing exercises like Pranayama.
In pursuance of the same, throughout
the months of February and March, I have been involved and have been
coordinating with the Zonal Commissioner of Ward – III of the Greater
Visakhapatnam Municipal Corporation, Mr. Shiv Prasad in the planning and
implementation of the fitness arena plan that had been proposed by Srijana
ma’am.
Usually, the functionaries under the
Government administrative and executive wings are infamous for their lax and
lackadaisical attitudes. However, the importance and relevance of public
participation in administering effectively, efficiently and in a time bound
manner was realised by me when the instead of the state functionaries taking
stock of the administrative issues, the public itself voiced their concerns and
made the administrative functionaries aware of the concerns that the masses
face.
It is therefore a sum total of all
these instances and episodes which prompted me to work on this topic.
POLITICAL
CONSTITUTIONALISM
To aid in context and explain the
true meaning of political constitutionalism,[1]
it is imperative to differentiate it from another related concept which is that
of legal constitutionalism.[2]
Legal constitutional presupposes
human infallibility and suggests that citizens and law makers alike may not
always possess the traits or the foundations necessary for a constitutional
democracy[3] and
therefore such a foundation is to be preserved and protected by the judiciary.
In other words, legal constitutionalism supposes or emphasises on the judiciary
serving as key restraint on the legislature in order to determine if any
particular piece of legislation satisfies or to the contrary contravenes
constitutional values.[4]
An example for legal constitutionalism
would be, for instance, the supreme court or the high courts striking down
legislation which violate the freedom of speech[5]
or go beyond or ultra vires the grammar of part- III rights.[6]
On the other hand, political
constitutionalism espouses that in upholding constitutional values, ‘the
democratic process’ is significantly a lot more credible, legitimate and
capable than courts in terms of resolving issues that strike at the bedrock of
constitutional values.[7] The entire
notion of political constitutionalism is that it seeks to resolve these issues
by encouraging or improving the democratic processes by improving or enhancing
the scope of consultations from the stakeholders.[8]
Such steps would include, improving the electoral systems to achieve proportional
representation, providing for multiple inflection points in order to balance
and improve the federal structure. In other words, much more than the law or
legislation in question, it emphasises or scrutinises the entire
decision-making procedures and how the same can be further legitimised by
ensuring the ‘participation’ of multiple stakeholders, especially, the ‘public’
at large. The norm of political constitutionalism sees or identifies itself as
a system that places or emphasises on the importance of stakeholder
consultation in the decision-making process.[9]
An infamous instance of completely
disregarding the tenets or principles of political constitutionalism came to
light on the 24th February, 2015 when the government introduced the
land acquisition bill, 2015.[10] The
effect of this bill was that the government could in certain cases acquire land
absolutely without the consent of the landowner or conducting a social impact
assessment.[11] Though
the bill did not get the required parliamentary support to give it the effect
of a law, it is noteworthy that not only was the consent requirement or
consultation requirement done away with, the bill effectively tried to
circumvent parliament scrutiny as well as approval.
PUBLIC
PARTICIPATION, PARTICIPATORY DEMOCRACY AND THE CONSTITUTION
In increasing the scope of public
consultation and from other stakeholders as well, the apex court in the case of
Rajeev Suri v. Delhi Development Authority[12],
the Supreme Court categorically recognised participatory democracy or
consultative democracy as an integral part of the constitution. The same amount
of fervour or enthusiasm has not been shown however by the government.
For instance, in the year 2021, in
the winter session of the parliament, out of 29 passed bills, 17 of them
absolutely saw absolutely negligible public consultation. In other words, more
than 73 percent of the total bills tabled in the winter session of the
parliament absolutely saw negligible public consultation.[13]
Additionally, the bills which
provided for public consultation on paper, in practise did not provide for
public consultation as either the bill was not available for comments in the
vernacular languages of the stakeholders or provided for an extremely short
period of time within which comments had to be submitted. The most infamous
instances of these occurrences being the Draft Lakshadweep Developmental
Authority Regulation (DLDAR) and the draft environment impact assessment (EIA). Additionally, it is also pertinent to note
that the text of the DLDAR is only available in English and according to the
2011 census, it was ‘only one’ person who got registered as literate in English
in Lakshadweep.[14]
Additionally, the EIA notification was
only published in the online format when as per reliable statistics, among the
pool of the most affected by the EIA, only 25.36 percent of the population had
access to the internet.[15]
Taking cue from jurisdictions abroad,
the South African Appellate court in the case of doctors for life international
v. Speaker of the National Assembly[16]
(doctor’s case) concluded that ‘it was the duty’ of the legislature to
encourage and create avenues for public involvement in the legislative and
administrative procedures undertaken by the state and that participation by the
public is the sine qua non to accommodate pluralistic viewpoints and is
extremely important to the functioning of a participatory democracy. The same
reasoning was also adopted by the courts in the cases of king v. Attorney’s
fidelity[17] and
Matatiele Municipality.[18]
Additionally in the doctors’ case,
the court further opined that the government is under an obligation to
facilitate public participation and the same is brought into play by the aid of
two elements. The very first requires that citizens have the necessary
information to take an ‘informed consent’ or have an ‘informed engagement’ with
the law and the second is to provide citizens an effective opportunity for them
to play their role in the law-making procedure.
The very same elements have found
their mention in the jurisprudence of the Supreme court in multiple cases by
being read into Article 21.[19] (A.21)
For instance, in the case of Reliance Petrochemicals[20],
the apex court of India held that the ‘right to know’ is an essential
ingredient of ‘participatory democracy’ and has been included under A.21.
Additionally, in the Kamil case[21], it was
held that the expression of one’s free will by the medium of political
participation is under the ambit of the right to life and liberty which has
been enshrined in A.21. It is also to be noted that in the case of Hanuman
Laxman[22], the
supreme court has categorically held that public participation is not to be
reduced to a step that is a mere procedural formality. The court in the
particular case emphasised on the constitutional importance of public
participation and localised administration and categorically stated that
vis-à-vis decisions which have a significant impact on the lives of individuals
must also be taken in a way that accounts for their concerns as well.
Additionally, in the Research Foundation case[23]
not only did the Supreme court read into A.21 the protection of the environment
and human health but also categorically stated and furthered the view of the
right to information being recognised under A.21.
Conclusion
In the conclusion, it is apt to state
that the very relevance of the right to public participation is to cross
fertilize and better or enhance any specific policy decision by taking into
account the views of those who would be the most affected by the policy in
question. In other words, the engagement and involvement of the members of the
civil society in the legislative process will only pan out to enrich the
‘tapestry of a participative democracy’. However, the author submits that the
enforcement and recognition of the said right under A.21 is just a mere step in
the accomplishment of the ultimate goal which is all about giving the governed
a voice in their own governance. The author also submits that in order to
achieve the genuine and true democratic constitutional ideals, the mere
existence of public participation only on paper or present in a formal or
tokenistic fashion is not enough at all. All the stakeholders and most
importantly the governed, should always be given an effective and reasonable
opportunity to advance their opinions in matters which significantly affect
them.
[1] Richard Bellamy, University College,
London, Political Constitutionalism: A
Genealogy, (August, 21st, 2020).
[2] The Britannica, Political and Legal Constitutionalism compared, available at
https://www.britannica.com/topic/constitutionalism/Political-and-legal-constitutionalism-compared,
(last visited on March 4th, 2022).
[4] Deccan Herald, Lets safeguard constitutional values, available at
https://www.deccanherald.com/opinion/comment/constitution-day-let-s-safeguard-constitutional-values-1054583.html,
(last visited on March 4th, 2022).
[7] The Citizen, Are Constitutional Values in danger, available at
https://www.thecitizen.in/index.php/en/newsdetail/index/4/21114/constitutional-values-in-danger-say-former-civil-servants,
(last visited on March 4th, 2022).
[10] PRS Legislative Research, The Land Acquisition Bill, 2015, available
at
https://prsindia.org/billtrack/the-right-to-fair-compensation-and-transparency-in-land-acquisition-rehabilitation-and-resettlement-second-amendment-bill-2015#:~:text=in%20May%202015.-,The%20Right%20to%20Fair%20Compensation%20and%20Transparency%20in%20Land%20Acquisition,Parliamentary%20Committee%20for%20detailed%20examination.,
(last visited on March 4th, 2022).
[11] Science Direct, Social Impact Assessment,
available at https://www.sciencedirect.com/topics/earth-and-planetary-sciences/social-impact-assessment,
(last visited on March 4th, 2022)
[13] Business Today.in, Zero Public consultation on majority of the bills, available at
https://www.businesstoday.in/latest/policy/story/winter-session-2021-zero-public-consultation-on-60-of-the-bills-to-be-introduced-313219-2021-11-24,
(last visited on March 4th, 2022)
[14] Bar and Bench, Unpacking the protests
against DLDAR, available at
https://www.barandbench.com/columns/unpacking-protests-draft-lakshadweep-development-authority-regulation-2021,
(last visited on March 4th, 2022)
[15] Census of India, 2011, Paper 1 of 2018, Language, India, States and Union
territories, Table (C-16)
Article Information
POLITICAL CONSTITUTIONALISM AND PARTICIPATORY DEMOCRACY: READING THE ESSENCE OF THE RIGHT OF PUBLIC PARTICIPATION IN ARTICLE 21 OF THE CONSTITUTION.
Authors: NAKUL SINGH
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/10/07
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
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