The Judicial Malaise

By Frank-Jürgen Richter

The Great Indian Dream, May 2012

India is fast drifting into a malaise that does not bode well for its future notwithstanding its avowed claim to be a `democratic´ nation.

It is not easier to set up three groups with adequate fi rewalls to run a nation. First, we need a set of people elected freely to act on our behalf (we are now too numerous to fi t in one room, and too clamorous as well). These elected people are our Members of Parliament (MPs) who discuss everything from formulating and implementing new laws to amending the existing ones. There is a third set of people, selected initially by the executive, to be the law makers and law keepers. These are the judges who rule on the legality of what parliament does, and what we can or cannot do.

All this did not begin with a `big bang´ but has been honed into clarity over many years in a few notable countries. In England, the role of parliament began about in 1066 when William of Orange (the last successful invader) set up a council of advisors who became ever more powerful, stirring the English civil war which resulted in the trial and execution of the king, Charles I. Thereafter, Parliament restricted the powers of the monarchy to that of constitutional monarch with limited executive powers. In the modern world, nations without a monarchy may still have a constitutional head elected by its MPs, or may vote for this head person directly: nevertheless there is a visible Head of State who at least notionally represents the country internationally though in practice it is their MPs who work nationally and internationally.

History suggests that, of the world´s 190(ish) nations about 150 are deemed to be democracies, and the numbers are growing each year – there was even a scale for measuring `democracy´ that was known as Polity IV. Rather more comprehensive are the characteristics drawn together by the Centre for Systemic Peace (CSP) who inter-relates a nation´s governance, conflict and development to yield an overall `black box´ score. Their global map on the Web covering states with populations greater than ½ million (i.e. 164) indicate a lack of democracy across a broad swath from China through Central Asia including all of Russia, into the Gulf and across Africa.

The rest of the world´s nations are more or less democratic – but there are many issues in defining this state-of-the world and its application to each nation. The definitional problem is that many nations while holding elections may in effect be electing `a dictator´ together with a few people´s representatives who really are minions of the dictator. Their Judiciary may not be independent and most likely will be weak in its actions. In fact, the CSP group defines three modes of governing – democracy (open management by and for the people), autocracy (often with hereditary chief executives and with very restricted citizen´s rights), and anocracy (a flip-flop of rapid chaotic changes between democracy and autocracy). The latter may be an intermediate state if an aspect of a staged change of regime from autocracy to democracy; but some regimes are so subject to strife they do not permit stability. An important aspect of democracy is the freedom of expression. This ranges from individuals being allowed to criticise anything though subject to some basic limitations about sedition, racism and so on, to the media also being allowed full rights to publish, to investigate and to lead discussions. These acts educate people through exposing them to the ideas of other people, cultures and religious beliefs showing how, in many instances, we each are quite close to each other once bias is eradicated.

Thus democracy needs to be worked for by all of us. We must use our technology to call via the social media for discussion of real issues and not to promote hysteria and to raise local worries about old ethnic reasoning.

There are two main aspects of a state `effectiveness´ and its `legitimacy´ which create an overall `fragility´ score ranging between 25 (worst) and zero. India rests in the moderately fragile sector (overall score of 13) with Effectiveness at 8 and Legitimacy at 5. There are forty one nations in a worse state than India including Pakistan (overall a little worse at 15); while Bangladesh scores better at 12. India therefore we may infer is drifting into a malaise that does not bode well for its future notwithstanding its avowed claim to be `democratic´: it compares poorly against China which carries a (low) overall score of 9 – partly as it is seen to not be as war-like as India even though it is autocratic. Democracy is thus a slow process. We have to allow time for the less avuncular to be heard and someone has to control those who wish to waste time gerrymandering. There ought to be a lessening of Partyline speeches and a more fundamental discussion raised that look to the issues of the people, even if such discussion goes far beyond the knowledge of local people: for instance about foreign policy, bio-ethics or the nuclear power residues. And, the Judiciary must be effective, completing its actions in an open and timely manner.

Frank-Jürgen Richter is the Founder and Chairman of Horasis – a global business community.