On The Limits Of Liberal Democracy

Liberal democracy can be identified as a form of government which is characterized by fair, free, and competitive elections between multiple political organization, a separation of powers into different branches of government with checks and balances put into place, the existence and implementation of rule of law in everyday life and the protection of human rights and civil liberties for all people.

The end of cold war and demise of communist governments through out the world has made liberal democracy capable to dominate the arena of political formation. It has been presented as the only alternative available in the present time with Fukuyama coming forward with grand declaration like that of the ‘end of history’. Even though we find liberal democracy to be the natural order of the day it is not without certain inherent tensions. These tensions can be found in the very formulation of liberal democracy.

Chantal Mouffe identifies liberal democracy as composed of or the result of the uneasy compromise among the two major traditions, that of, the liberal tradition constituted by the rule of law, the defence of human rights and the respect of individual liberty and the democratic tradition whose main ideas are those of equality, identity between governing and governed and popular sovereignty. It is possible to identify the issues faced by liberal democracy as those presented by tension inherent in the formulation of its framework.

Authors such as Benjamin Constant has noted the tension that existed between the tradition associated with Locke, which gives greater weight to "the liberties of the moderns",which includes, freedom of thought and conscience, certain basic rights of the person and of property and the rule of law and the tradition associated with Rousseau, which gives greater weight to the "liberties of the ancients", which includes, the equal political liberties and the values of public life. This tension has been carried over through out the discussions and deliberation on the issues regarding the liberal democratic regimes with some liberals such as F.A Hayek arguing that democracy is an instrument, a means for safeguarding internal peace and individual freedom.

This being the first and foremost role of the democracy, liberals asserts that it can and should be discarded if it endangers the liberal institutions. On a different note but still insisting upon the supremacy of the liberal institution other liberals have undertook a line of argument that people deciding in a rational manner, could not go against rights and liberties and, if they happened to do so, their verdict should not be accepted as legitimate. We find from the other side, staunch democrats has been keen to dismiss liberal institutions as ‘bourgeois formal liberties’ and to fight for their replacement by direct forms of democracy in which the will of the people could be expressed without hindrances. Democratic regimes establishes itself on the base of a ‘demos’ the people who form the polity. This ‘demos’ formed not on the basis of humanity but on the idea of commonality among the people who comes to form the polity. Therefore a certain conception of justice common to all the member is an imperative in the formulation and maintenance of democratic institutions. Thus dichotomy between the liberal emphasis on individual rights and liberties and democratic emphasis on collective formation and will-formation underlies the institution of liberal democracy.

Even though it has been accepted both in theory and practice that in a liberal democratic structure that it is legitimate to establish limits to popular sovereignty in the name of liberty. These limits are usually engraved to ensure that the established structures respects and protects the human rights. These human rights are defined and articulated on the basis of the existing dominant ideology therefore are subjected to change. Thus a clear case has been made for ensuring the existence of the limits to popular sovereignty but the nature and scope of these limits are flexible. On one side this structure serves to protect individual rights, on the other side, those rights provide the necessary conditions for the exercise of popular sovereignty. These can be understood as the paradox presented by the liberal democracies.

Freedom of Speech: Indian and US Constitutional Law

The debate over the freedom of speech and expression has become almost a daily incident in the popular media, academic circles or general conversation of citizens all over the world. India is no exception to this trend, rather it is exhorted here with unparalleled vigour among the general public. In such conversations in India, at least, United States of America is enthralled as the land of absolute free speech where the restriction such as we see in India does not come into picture.

These being said one must indulge in identifying certain important fact and concepts before embarking on an attempt to write about freedom of speech and expression as they presents themselves in Indian and US constitutional law.

It should be remembered that fundamental rights are different from the concept of human rights. Human rights are those inalienable right which every individual possess by the virtue of being a member of human species. As human rights are inalienable under no circumstance can it be violated. On the other hand fundamental rights are the gift of the state to its citizens. They cease to exists with the termination of citizenship of an individual by the state. Being a gift of the state to its citizens the constitution of a state is well within its rights to impose restriction on it. Like in Indian constitution the article regarding “freedom of speech and expression” finds its place among the fundamental rights as article 19(1)A along with certain restrictions on the said fundamental right. 

If such restrictions are not placed in the constitution itself, it remains under the authority of the courts (guardians of constitution) which are equipped with the ability to interpret the constitution to impose such restrictions on the fundamental rights as and when it seems to be in need of restrictions  after due consideration. In US constitutional law the authority to impose restrictions on fundamental rights rests with the US congress.

In Gitlow v. New York, (268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138, is a 1925) Supreme Court upholding the constitutionality of criminal anarchy statutes, it advocated that:

"It is a fundamental principle, long established, that the freedom of speech and of the press, which is secured by the Constitution, does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom"

Court continues:

"That a State in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to corrupt public morals, incite to crime or disturb the public peace, is not open to question."

Even when subsequently it tone down its position on restrictions placed on free speech, US court maintained that states may prohibit utterances that directly incite lawless action or advocate individuals to imminently take lawless action.

The conclusion that emerged out of this was that the legislature may decide that certain speech can be prohibited. Those legislative decisions will be upheld if not unreasonable and will be enforceable rule punishable under law. Thus the state is provided with the authority to restrict the rights through evoking the concept of police power. This leads to a precarious situation where legislature can make laws to restrict rights but court can accept or struck in down if it identifies it to be reasonable or unreasonable respectively.

On the other hand in Indian by inscribing the list of reasonable restrictions in the constitution itself. Constitution limits the power that can be exerted by all three wings of government (Executive, Legislature and Judiciary). The legislature can only make laws in so far as it comes under the provisions provided in the constitution and supreme court does not have to be too creative as in US rather it should only consider whether the law passed by the legislature are in line with articles in Indian constitution.