Indian Constitution: Provisions and Institutional Functioning
Philosophy of the Constitution
A Constitution is a body of fundamental rules which determines how a nation would be governed. These rules provide the framework to which ordinary laws of the country must conform to. The absence of a Constitution will leave governance to the whims of the rulers. The Constitution of India is the lengthiest written Constitution in the world. It was adopted by the constituent assembly on 26 November 1949; and it came into force on 26 January 1950.
The basic philosophy of the Constitution, its moving spirit, is to be found in the Preamble. The Preamble is the basic structure of the Constitution. The Preamble says that people are the ultimate authority, and the Constitution emerges from them. In fact the Preamble contains with the declaration that ‘to secure to all citizens justice, expression, belief, faith and worship–equality of status and of opportunity’. The Preamble emphasizes the unity of the nation, and it proceeds further to define the objectives of the Indian Republic. It is the soul of the Constitution, and as such is the precious part of the Constitution.
The Constitution of India clearly defines the responsibilities of Indian citizen, their fundamental rights and duties. Part II of the Indian Constitution covers the clauses on citizenship. Fundamental rights which are covered in Part III of the Constitution are basic rights guaranteed to the individual. Articles 14 to 32 deal with six classes of fundamental rights as follows: a) right to equality; b) right to freedom; c) right against exploitation; d) right to freedom of religion; e) cultural and educational rights; f) right to constitutional remedies.
Education became a fundamental right of every child in the age of 6 and 14 years through the 86th amendment by inserting a clause in the Constitution in 2002. Parliament passed the enabling law. The right of children to Free and Compulsory Education Act has come into effect from 1st April 2010. The act makes it a right of every child to get education; and it is obligatory for the appropriate governments to ensure that every child gets free elementary education.
The fundamental rights conferred by the Constitution of India are enforceable through writs under Article 32. They are protected against unnecessary interventions of the Executive as well as the Legislature, and also any individual. The writs as means of constitutional remedies are available to the individual as a legal personality, and the Judiciary may enforce these against arbitrary and unconstitutional actions of private individuals, sections of society, and the State. The importance of Article 32 with respect to the enforcement of the fundamental rights led Dr Ambedkar to consider it as the ‘most important’ of the Articles of the Constitution. He called it, ‘the very soul of the Constitution and the very heart of it’.1
Certain changes have been affected in the nature of liberal rights. The first Constitution Amendment Act, 1951, inserted Article 31(A), which gave enormous power to the State with respect to the acquisition of estates or taking over of management of any property or corporation in public interest. It sought to exclude such acquisitions or taking over from the purview of judicial review under Articles 14 and 19. Article 31(B), which was also inserted by the first Constitutional Amendment Act, 1951, provided that the Acts and Regulations specified in the Ninth Schedule of the Constitution have been saved against the challenge on the ground of inconsistency with the Fundamental Rights. Article 31(C), which was inserted by the 25th Constitutional Amendment Act, 1971, and as amended by the 76th Constitutional Amendment Act, 1976, provides that any law giving effect to any of the Directive Principles would not be challenged on the basis of being inconsistent with Articles 14 and 19. Though the Supreme Court has held that judicial review, as a basic structure, cannot be taken away, Articles 31(A), 31(B) and 31(C) saved land reform legislations and curtailed individual liberty to secure the implementation of the Directive Principles, land reforms and the socialist goal. They gave power to the State to limit the power of the individual for balancing with social goals.
Part IV provides Directive Principles of State Policy, a set of guidelines for the Central or State Government. Articles 36 to 51 deal with the Directive Principles of State Policy. DPSP laid down by the constitution puts forth that the state shall strive to promote the welfare of the people by promoting a social order in which social, economic and political justice is informed in all institutions of life. The state shall provide free legal aid in order to ensure equal opportunities for securing justice. The state shall endeavour to provide the right to work, to education, and to public assistance in cases of unemployment, old age, sickness and disablement, within the limits of economic capacity. According to the principles the state aims for securing right to an adequate means of livelihood for all citizens to men and women and offer equal pay for equal work for both men and women.
Although the Directive Principles are asserted to be fundamental in the governance of the country, they are not legally enforceable. However, the Constitution assigns priority to fundamental rights, given their enforceable nature. In case of any conflict between the rights given in part III and those in part IV, the former prevails. In the State of Madras v. Champakam (1951), the Supreme Court also upheld this position. Judicial intervention and judicial review provide the guarantee of privacy of the Rights over the Directives.
The fundamental rights are mostly provided in defence of the individual against the State. They are negative prescriptions barring the State from restricting individuals in their rights to perform some activity. The directive principles on the other hand, are in the nature of encouragement to the State to achieve certain humanitarian, social, liberal-constitutional, and Gandhian goals. The fundamental rights constitute limitations on the State but the directives are appeals from the constitution to the State to take initiatives to achieve certain goals.
Though these Directives are not enforceable by courts, and if the government of the day fails to carry out these objects, no court can make the government ensure them, yet these principles have been declared to be ‘fundamental in the governance of the country, and it shall be the duty of the state to apply these principles in making laws’ (Art.37).
The sanction behind them is, in fact, political. As Dr Ambedkar observed in the constituent assembly, ‘if any government ignores them they will certainly have to answer for them before the electorate at the election time’.2 Article 355 says ‘it shall be the duty of the Union… to ensure that the governance of every state is carried on in accordance with the provisions of this Constitution.’ If so, it should be the duty of the Union to see that every state takes steps for implementing the Directives, as far as possible. In case of refusal to comply with such directions issued by the Union, it may apply Art.365 against such recalcitrant state.
Part IV A, Article 51, Fundamental Duties, was inserted by the 42nd Constitution Amendment Act, 1976. This enjoins upon each citizen to bear certain responsibilities. The duties of citizens have been duly provided to enhance and promote the Rights and Directives. The Fundamental Duties are consistent with the expectations in part III, part IV and the values in the Preamble.
The Preamble, the Fundamental Rights and the Directive Principles read together make it clear that the Constitution aimed at creating conditions for the building of an egalitarian society in which individual freedoms were secure. It did not visualize abandonment of one ideal for the preservation of the other principle. At the same time, the relationship between individual liberty and social change was rightly envisaged as dynamic.
There is a broad separation of power under the Constitution, and each organ of the state–the legislature, the executive and the judiciary must have respect for the others, and must not encroach into each other's domain. The principle behind the separation of powers is that all powers of Government should not rest in one hand, as this will lead to arbitrary or authoritarian rule, and hence the curtailment of an individual's liberty.3
Another attempt at reconciliation of seemingly contradictory principles of Govt. made by the Constitution of India is the combination of Westminster tradition of Parliamentary Govt. with the federal principle, first invented in modern times by the United States Constitution. The combination of parliamentary system with federal system in the Indian Constitution entails the resultant division of powers between the Union Parliament and State Legislature.
In the Indian parliamentary system, the office of the President is like a ‘pivot’ that joins the two wheels, namely the Legislature and the Executive. The office of the President is a constitutional conjunction where the legislature and the executive organs meet. At the Head of the Union Executive stands the President of India. Article 53 proclaims that the executive power is vested in the President, and shall be exercised by him either directly or through officers–subordinate to him in accordance with the Constitution. Article 74(1) provides that there shall be a Council of Ministers with the Prime Minister at the head to aid and advice the President, who shall, in the exercise of his functions, act in accordance with such advice. The President, thus, cannot ever rule the country unaided by council of ministers. As Jawaharlal Nehru pointed out in the Constituent Assembly, ‘We want to emphasize the ministerial character of the Government, that power really resided in the ministry and in the legislature and not in the President as such’.4 Moreover, the subtle motive of the framers, as understood by Austin, in opting for the parliamentary executive, was to provide ‘strength with democracy’5 to the political system of the country, for, as noted by K.M Munshi, ‘the parliamentary system produces a stronger government, for (a) members of the Executive and Legislature are overlapping, and (b) the heads of government control the legislature,’6 though, at the same time, it ensures that the people get the chance to elect their representatives to form the House of the People (Lok Sabha), from which the body of the Council of Ministers, including the Prime Minister is drawn, primarily.
As Ambedkar succinctly pointed out in the Constituent Assembly, ‘Under the Constitution, the President occupies the same position as the King under the English Constitution. He is the head of the state but not of the executive. He represents the nation but does not rule the nation. He is the symbol of the nation. His place in the administration is that of a ceremonial device or a seal by which the nation's decisions are made known’.7
However, a few Presidents, beginning with Dr Rajendra Prasad, the first President who not for ‘entirely personal’ reasons, but with a view to enable the Presidency to assume authority and continuity, should the nation, or more particularly the Union Government, ever undergo political upheaval’8, sought to attribute vastly greater powers to the office of President than ordained by the Constitution by establishing the firm precedent that within the Executive the cabinet is all powerful,9 as both A. K. Ayyar and the first Attorney General of India, M. C. Setalvad reasoned out against the contention of Prasad.
The Constitution vests large powers in the President, but requires them to exercise these powers according to the aid and advice of the Council of Ministers. The Office of the President carries nominal powers; the Prime Minister, with the Council of Ministers, exercises real power. In other words, the Indian President reigns, but does not rule. Paul R. Brass suggests wisely, the President can function effectively only if he has the confidence of the Prime Minister and not vice-versa10 as ‘the President is by convention reduced to a mere figurehead while the Ministry is the real executive’.11
The first Union Cabinet was virtually a diarchy between Prime Minister Nehru and Deputy Prime Minister and Home Minister, Vallabhbhai Patel. The two stalwarts exchanged notes on their divergent views about the role of the Prime Minister and the cabinet system through Gandhi. Gandhi's assassination reunited Nehru and Patel. Their reconciliation not only saved Congress and India's Central Government from collapse, but it also kept Nehru in power. Without Sardar's strength and support Nehru might have broken down or would have been forced out of the high office. Vallabhbhai ran India's administration for the next two years while Nehru indulged mostly in foreign affairs and high Himalayan adventures.12 After Patel's death in December, 1950, Nehru exercised unchallenged power in the cabinet.
The controversy between first President, Dr Prasad and first Prime Minister, Pandit Nehru highlighted significant Constitutional and Political aspects of executive relationship. Since the Constitution was not categorical in making the advice of the Council of Ministers with the Prime Minister as the head binding on the President, their relationship brought forward the need for setting a tradition of supremacy of the Political Executive in the Parliamentary system. It underlined the limit of the President's power. The controversy also initiated the tradition of tolerating disapproval by the President of the Governments policies and proposals, if the disapproval was not intended to be a political challenge to the Prime Minister. It also demonstrated that the President even though a nominee of the political party in government is not an assurance of their continued acquiescence to the government's proposals. Even though the two had uneasy relationship still there was co-operation between the two and by and large, Dr Prasad followed the advice of Nehru and his Council of Ministers.
The next President, Dr S. Radhakrishanan, went by the spirit of the provisions of the Constitution. His handling of the succession issue after the death of Nehru in 1964, and again after the death of Shastri in 1966, showed his adherence to the Constitutional practices and norms. The senior most member of the Council of Ministers, Lal Bahadur Shastri and Gulzari Lal Nanda respectively, were called upon by the President to assume the role of Prime Minister. However, Dr Radhakrishanan continued the tradition set by the President Prasad of publicly criticizing the government. In the 18th Republic Day speech, Dr Radhakrishanan is said to have expressed his concern on the charges of corruption frequently made against all levels of government, Central and State. He desired immediate disposal of these charges, with disposal of all allegations and admission and rectification of those that had some basis. He felt that such admissions would enhance the prestige of the government. Both Dr Prasad and Dr Radhakrishanan despite having been elected as nominated candidates of the Congress Party were not seen as partisan.13
During the tenure of Indira Gandhi, things changed and the Presidents were accused of being less independent and of playing a partisan role. After Dr Radhakrishanan, Dr Zakir Hussain was elected as the President. He held the office from May 1967 to May 1969. During his tenure, there was little controversy between the President and the Prime Minister. However, this period became important for non-congress governments, in seven states, where non-congress Samyukta Vidhayak Dal (SVD) governments were formed. The political climate at the Center and the State was becoming uncertain and, on 13th November 1969, the Congress Parliamentary party split into two: Congress (Organization) or Congress (O), and Indira Congress or Congress (I).
Fresh questions cropped up during the presidencies of Zail Singh and his successor R Venkataraman. Zail Singh complained of denial of power and opportunities to be briefed by Prime Minister Rajiv Gandhi in person as well as to be provided with the Thakkar Commission Report on Indira Gandhi's assassination that he requisitioned. Singh contended that he was entitled to these courtesies/rights under Article 78 which enjoins upon the Prime Minister to keep the President informed about the affairs of the state.14
Later, when the Bofors Arms deal scandal involving the Rajiv Gandhi govt. surfaced, Singh and his successor Venkataraman were consecutively approached to dismiss or sanction prosecution against the PM on corruption charges.15 Neither actually took this drastic step which to our mind was correct. For going by strictly legal and constitutional norms, the President should in such cases neither short-circuit judicial procedure nor circumvent a parliamentary majority. However, writing about his dealing with this question, Venkataraman in his memoirs records that the Attorney General veered to the position, but the Supreme Court's ruling in Kurunanidhi's case would suggest that the Chief Minister (and therefore a Prime Minister) might be deemed to be a public servant under the Anti-Corruption Act, 1986, and the Governor (and therefore a Prime Minister) for proven charges of corruption.16 Besides, he also argued that in term of the R. S. Naik case, the President or the Governor should decide independently of the Council of Ministers in sanctioning such prosecution. However, both the President and the Attorney General thought that both ‘these positions could be assailed in appropriate proceedings’.17
The period of unstable and coalition government continued until 1999. The President K. R. Narayanan had to deal with the unstable United Front government of Prime Minister I. K. Gujral (April 1997 to November 1997) and the post-election government formation in March 1998. After the withdrawal of Congress support from I. K. Gujral's government in November 1997, the President acted on the advice of the I. K. Gujral's Council of Ministers, which had resigned, and dissolved the House. Fresh elections took place in March 1998. The BJP emerged as the main claimant, with 179 seats and the support of 73 members. However, the President asked A.B. Vajpayee, ‘let me know whether you are able and willing to form a stable government which can secure the confidence of the house.’ The President also asked Vajpayee to submit documents in support of his claims.18 The President Narayanan's approach of seeking documentary evidence of majority support was a clear departure from the earlier practice of inviting the single largest party.
The President Narayanan is also known for his bold action of requesting reconsideration of the recommendation of the Council of Ministers, under the United Front government of I. K. Gujral for dismissing Kalyan Singh's government in Uttar Pradesh and imposing the President's Rule there in October 1997. Later, in 1998, the President Narayanan once again requested reconsideration of the recommendation of the National Democratic Alliance government to dismiss the Rabri Devi government in Bihar and impose the President's Rule on the grounds of breakdown of law and order in the state. The President Narayanan was praised for upholding constitutional propriety. The President A. P. J. Abdul Kalam continued the tradition of the presidential discretionary power of advising caution and reconsideration. The President Kalam asked Parliament to reconsider the Prevention of Disqualification Amendment Bill of 2006.
Pratibha Patil, assumed office in July 2007, her tenure has not seen much debate so far. In its second success as the leader of the United Progressive Alliance (UPA), the Congress won a strong support base in the elections. After the general elections in 2009, post constitution of Lok Sabha, the President, however, in her address to Parliament, envisaged that the schemes and programs implemented by the government should fulfill the requirements of equity and inclusion, innovation, and transparency.
With the transformation of the party system and the advent of coalition Governments, the presidential power has acquired a new dimension. As James Manor hypothetically explores:
‘The President has become more important since 1989 because he is the referee in the game of Government formation, and he decides whether to grant a Prime Minister's request for dissolution of Parliament, the former task has become more complex and difficult, and the latter is a potential problem. This makes it much more likely that the presidency will be engulfed in heated disputes which may occur even if the Presidents seek to avoid controversy–as they usually do.’19
Power of the President
Article 53 of the Constitution of India vests all the executive power of the Indian Union in the President of India. The executive powers of the President primarily means the execution of the laws enacted by the legislature, and the power of carrying on the business of government as well as the administration of the affairs of the state.20 The powers of the executive can be classified as legislative, administrative, diplomatic, military and judicial powers. The Constitution of India also provides for emergency powers.
The Indian President is an integral part of Parliament, which includes the President of India and the two houses of Parliament: the Lok Sabha (the House of the People) and the Rajya Sabha (the Council of States) (Article 79). This arrangement makes the President the head of the legislative process, as without his assent to a bill, it cannot become an act.
Sessions of Parliament, prorogation and dissolution: The President shall from time to time summon each House of Parliament to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session. The President may, from time to time, prorogue the Houses or either House; dissolve the House of the People.
Right of the President to address and send messages to Houses: The President has the right to address either House of Parliament or both Houses assembled together. The President can send messages to either House of Parliament with respect to a pending bill or otherwise, and the concerned House shall consider any matter required by the message (Article 86). The Constitution is silent about the subject matter of the address by the President. The opening address by the President after each General Election and each year provides an outlook on general policy and administration of the government.
Prior Sanction/Recommendation for Introducing a Bill: The Constitution required previous sanction or recommendation of the President for initiating a bill in Parliament on certain matters. In any case, assent to any bill is required for the enactment of legislation. Under Article 3, the Constitution requires that, for the formation of new states and alteration of areas, boundaries, or names of existing states, a bill can be introduced in either House of Parliament on the prior recommendation of the President. The Government presents estimates of expenditure for the coming year in the budget to Parliament. Article 113(3) requires that no demand for a grant be made except on the recommendation of the President.
Article 117(1) requires that a Money Bill – on subjects mentioned under Article 110–or amendment thereto shall not be introduced or moved except on the recommendation of the President. Further, a Bill that if brought into effect, would involve expenditure from the Consolidated Fund of India shall be considered by either House of Parliament only if the President has recommended it for consideration. As such the prior recommendation of the President is required in case of the introduction of the Money Bill or any bill that involves expenditure from the Consolidated Fund of India. As per Article 110, a Money Bill may include subjects such as imposition, abolition, or changes in tax, borrowing, guarantee, or obligation by the Government, payment of money to and withdrawal of money from the Consolidated Fund or Contingency Fund of India, appropriation of money from the Consolidated Fund of India, expenditure declared as charged upon the Consolidated Fund of India, receipt of money on account of Consolidated Fund of India or public account of India or the custody of such money or the audit of the accounts of the Union or of a state.
Assent to Bills: No bill passed by Parliament can become Act unless it receives the assent of the President. Article 111 provides that when both Houses of Parliament pass a bill it should be presented to the President for assent. According to the Constitution the President can either declare assent to, or withhold assent to a bill. Further, he can also return a bill to the Houses for reconsideration. If the President withholds assent from a bill, it cannot become a Law, and he is said to have exercised the absolute veto power. One instance where the President used absolute veto power relates to the salary, allowance, and pension of the Members of Parliament (Amendment) Bill, 1991. The bill was passed by both Houses of Parliament on the last day of its sitting, however as required by Article 110 and 117(1) no recommendation could be obtained from the President. When the bill was presented to the President Venkataraman, he withheld his assent.
In case of a bill other than money bill, the Constitution states that the President can return the bill to the Houses for reconsideration as soon as possible after the presentation of the bill to them. This allows the President to keep the bill in abeyance, and can thus exercise the pocket veto without declaring either assent to or withholding of assent. One example of the use of pocket veto was when the President Zail Singh held the Indian Post Office (Amendment) Bill, 1986, in abeyance, which proposed to put in place an intrusive law which would have enabled intercepting letters, communications and phone calls, and curtailing freedom of the press. It was only in December 1989, when a new Government took over, that the President R. Venkataraman returned the bill for the consideration of the Houses. The two examples suggest that an executive check, in the form of the assent of the President to a bill, is required to obviate any possibility of the passage of a hasty or ill-considered bill by the Legislature.
However, there may be certain situations in which the President, acting on the advice of the Council of Ministers, may have to return bill for consideration of the Houses or withhold assent there from, even after a bill has been passed by both the Houses. One such situation may arise when the Houses have passed a private members bill, even if it lacks the support of the Council of Ministers. It is possible that some members of the ruling party may have voted in favour of the bill, which the Government discovers only after the bill has been passed. It is also possible that after the bill has been passed by the Houses and presented to the President, an event or situation may have taken place that requires reconsideration or scrapping of the bill. Finally, there may be a situation in which, after passage of a bill by the Houses and its presentation to the President, the Council of Ministers quit and a new Council of Ministers assumes office. If the new Council of Ministers, having a majority in the House, advises the President to either return the bill for the reconsideration of the Houses or to withhold assent there from, it would be Constitutional on the part of the President to use the veto power.21
Power of the President to Promulgate Ordinances: Under chapter III, article 123, the Constitution specifically provides for the Legislative powers of the President. It gives power to the President ‘to promulgate ordinances during recess of Parliament’. The President can promulgate ordinance: when either or both Houses of Parliament are not in session; when satisfied that the prevailing circumstances require them to take immediate action. The President can make laws through ordinances on all the subjects on which the Indian Parliament can. Under Article 13 the Constitution considers ordinances as laws.
There may be circumstances that may render the promulgation of an ordinance to the apprehension of being mala fide. For e.g. the Council of Ministers may advise the President to prorogue a House of Parliament with the intent to by-pass the legislature and get an ordinance promulgated. This can be used as a tool to legislate on controversial matters or on politically motivated issues. A. G. Noorani, in his book Constitutional Questions in India mentions various proposals of controversial ordinances. The President Sanjeeva Reddy refused to sign ordinances proposed by the government of Charan Singh in the late 1970s on matters such as ‘financial help for candidates seeking elections’, ‘reservation of jobs for backward classes’ and ‘long term contracts of commercial nature with foreign party’. Similarly, the President Shankar Dayal Sharma, refused to sign ordinances on two controversial issues proposed by the government of Narasimha Rao. In 1996, the Government proposed ordinances on ‘shortening the period of poll campaigns from three weeks to two’ and ‘extending reservation to Dalit Christians’. The President refused to promulgate ordinances on the subjects.22
Article 77 states that, ‘All executive action of the Government of India shall be expressed to be taken in the name of the President’. As such, all the administrative powers exercised by the political and bureaucratic executive are in the name of the President. The Constitution of India, under Article 75, provides that the Prime Minister shall be appointed by the President and the other ministers shall be appointed by the President on the advice of the Prime Minister.
The diplomatic power of the Union, which is taken in the name of the President, includes the conduct of foreign affairs and foreign relations. The President represents India in international affairs.
The Constitution of India, under Article 53(2), vests the ‘supreme command of the Defence Forces of the Union’ in the President. The President is the head of the defence forces in India, which includes the army, the air force and the navy.
The President of India appoints the judges of the Supreme Court and the High Courts and, on the address of Parliament, may dismiss them. The Constitution of India, under Article 72, gives the President the power to grant pardons, reprieves, or remissions of the punishments, or to suspend, remit, or commute the sentence of any person convicted of any offence. These powers of reprieve provided by Article 72 are discretionary powers of the President and are in the nature of the prerogative of mercy.
The Constitution speaks of three different kinds of Emergency.
- National Emergency: Article 352 provides that the President can declare an Emergency if the security of India or any part of its territory is threatened by war, external aggression or armed rebellion. So far, the President has invoked this article thrice: on 26th October 1962 (National Emergency due to external aggression by the Chinese); on 3rd December 1971 (National Emergency due to external aggression caused by the India–Pakistan war); and on 25th June 1975 (National Emergency against internal disturbance).
- Failure of the Constitutional Machinery in the State (the President's Rule): If the President is convinced that the government of the state cannot be carried on in accordance with the provisions of the Constitution, it will amount to failure of the constitutional machinery in the States (Article 356).
If the President, by proclamation, declares the failure of constitutional machinery in a state, the following changes take place, i) the President can assume to himself all or any of the functions of the State Government; ii) the President can assume to himself all or any of the powers vested in or exercisable by the Governor or anybody or authority in the state other than the Legislature of the State; iii) the President may by proclamation declare that the powers of the Legislature of the state shall be exercisable by or under the authority of Parliament.
One case of the imposition of the President's Rule that came under national debate and judicial scrutiny deserves special mention. On 21st April 1989, the President R. Venkataraman had issued a declaration imposing the President's Rule in Karnataka. Following the declaration, the elected government of Chief Minister, S. R. Bommai was dismissed. In 1994, a nine-member bench of the Supreme Court considered the scope and application of Article 356. Justice Jeevan Reddy and Justice S. C. Aggarwal held the action to be ‘malafide and unconstitutional’. In the famous S. R Bommai Vs. Union of India (11th March 1994) case, the Supreme Court pronounced that:23 i) the presidential proclamation dissolving a State Assembly is subject to judicial review; and ii) till the proclamation is approved by both Houses of Parliament, the Legislative Assembly of the State should not be dissolved, i.e. it can be kept in ‘suspended animation’.
- Financial Emergency: The Constitution provides for extraordinary powers to the President in cases of financial emergency. The provisions for an Emergency on the grounds of threat to ‘the financial stability or credit of India or of any part of the territory there of’, i.e. ‘financial emergency’, is made in Article 360. If the President is satisfied that a situation has arisen where the financial stability or credit of India or any part of India is threatened, he may declare a financial emergency in the whole or part of India. So far, the President has not invoked the power of declaring a financial emergency.
Parliament is representative of the democratic set up of the country. The apex legislative body in India is the Parliament of the country. A bicameral parliamentary system is followed in the country. There are two houses in the Indian Parliament, namely the Lok Sabha and the Rajya Sabha. The President is the Head of the State and can summon or dissolve either of the Houses of the Parliament. The Parliament of the country also runs on the principles set by the Indian Constitution, which came into force on 26th January, 1950.
Also known as the Upper House of the Indian Parliament, Rajya Sabha has maximum of 250 members. The election procedures for the members of the Rajya Sabha are entirely different from that of the Lok Sabha. The Legislative Assemblies of the various Indian States play an important role in the elections of Rajya Sabha. The general people of the country do not directly elect the members of Rajya Sabha. There are 12 members in the Rajya Sabha, who are appointed directly by the President of the country. These 12 people are eminent personalities and have made a distinct mark in fields of art, science, literature and many more.
There are certain criteria that have to be fulfilled for becoming a member of the Rajya Sabha. The members have to be at least 30 years of age, while contesting the elections. From every state, certain numbers of members are selected. As in Lok Sabha, there is no chance of the Rajya Sabha to be dissolved. After every two years, one-third of its members retire and new people occupy the posts.
The Vice-President of the country is the ex-officio Chairman of the Rajya Sabha. An Electoral College is formed for electing the Vice-President in India. The Electoral College has participation from both the Houses of the Parliament. The Deputy Chairman is also selected from the Rajya Sabha.
The Lok Sabha is the House in the Parliament that is representative of the people of the country. The people of India directly elect the members of the Lok Sabha by using their voting powers. Any Indian citizen, who has attained the age of 18 years, can participate in the procedure of formation of the Government in India. Unlike Rajya Sabha, the minimum age that is required to become a member of the Lok Sabha is 25 years. There are total 545 members in this House of the Parliament, and the members are elected from the various states and union territories of India. There can be a maximum of 552 members in the Lok Sabha.
The Speaker is the Presiding Officer of the Lok Sabha in the Parliament House. One of the members from the Lok Sabha is elected as the Speaker of the House. The Speaker takes care of the proceedings of the House, when the session of Lok Sabha is held. There are summer, monsoon and winter sessions that are held in Lok Sabha every year. The Speaker has the power of adjourning or stopping the proceedings of a session.
Functions of the Parliament (Lok Sabha and Rajya Sabha)
Both the Lok Sabha and the Rajya Sabha are endowed with certain responsibilities and duties. Passing of bills and making of laws is the primary concern of both the houses of the Parliament. Before a bill becomes a law, it has to be passed by both the houses of the Parliament. An objection from any of the houses can stop a bill from becoming a law. After both the houses pass a bill, it needs the assent of the President of India before being formulated into a law.
The major concerns that are dealt with in the Parliament are topics mentioned in the Union List. The topics covered by the Union List are transport and communications, banking, railways, foreign affairs, defence, customs, excise duties and others. There is a State List where matters related directly to the State Government are enlisted. The Parliament has no role to play in that list. However there is a Concurrent List, on which both the State and the Central Government can take decisions. In case of any dispute, the stand of the Union Government is taken into consideration.
Apart from passing of laws, there are many other issues that are dealt with in the Indian Parliament. The Parliament decides on issues related to price control, social safety and security, insurance, social and economic planning and many more. There is a Question Hour, which is usually the first hour in the Parliament, when the members of Parliament are free to ask questions regarding the various Governmental and administrative activities. Questions are also raised on national and international issues and India's stand on those issues. The Question Hour is an important part in the proceedings of the Parliament.
The Budget Session in the Parliament is one of the most important sessions. The session is held to decide on the fiscal financial management policies of the country. The yearly expenditure is brought into account and monetary policies of the country are made clear during this Budget Session. There are open discussions held in the Lok Sabha regarding the various issues related to the budgets of the country. In the initial four or five days, a sketch of the policies and principles is given to the members of the Parliament. After the initial stages, detailed discussion on the budget is carried out in the Parliament, where consent from each segment is sought before the final budget is formulated.
Parliamentary committees play a vital role in the Parliamentary System. They are a vibrant link between the Parliament, the Executive and the general public. The need for Committees arises out of two factors, the first one being the need for vigilance on the part of the Legislature over the actions of the Executive, while the second one is that the modern Legislature. These days, it is over-burdened with heavy volume of work with limited time at its disposal. It thus becomes impossible that every matter should be thoroughly and systematically scrutinized and considered on the floor of the House. If the work is to be done with reasonable care, naturally some Parliamentary responsibility has to be entrusted to an agency in which the whole House has confidence. Entrusting certain functions of the House to the Committees has, therefore, become a normal practice. This has become all the more necessary as a Committee provides the expertise on a matter which is referred to it.
In a Committee, the matter is deliberated at length, views are expressed freely, and the matter is considered in depth, in a business-like manner and in a calmer atmosphere. In most of the Committees, public is directly or indirectly associated when memoranda containing suggestions are received, on-the-spot studies are conducted and oral evidence is taken which helps the Committees in arriving at the conclusions.
Parliamentary Committees are of two kinds: Ad hoc Committees and the Standing Committees most powerful of all is public accounts committee which is headed by the leader of the opposition.
Each House of Parliament has standing committees like the Business Advisory Committee, the Committee on Petitions, the Committee of Privileges and the Rules Committee, etc. Standing committees are permanent and regular committees which are constituted from time to time in pursuance of the provisions of an Act of Parliament or Rules of Procedure and Conduct of Business in Parliament. The work of these Committees is of continuous nature. The Public Accounts Committee, the Committee on Estimates, and the Committee on Public Undertakings are most important committees. There is another set of standing committees, known as the Department Related Standing Committees (DRSCs). They were created in 1989, and then expanded in 1993. DRSCs and other parliamentary committees are very significant spots from where the legislature can exercise structural constraints on the executives.
Ad hoc Committees
Ad hoc committees are appointed for a specific purpose and they cease to exist when they finish the task assigned to them and submit a report. The principal ad hoc committees are the Select and Joint Committees on Bills. Others like the Railway Convention Committee, the Committees on the Draft Five Year Plans, and the Hindi Equivalents Committee were appointed for specific purposes. Joint Committee on Food Management in Parliament House Complex etc. also comes under the category of ad hoc committees.
Decline of the Indian Parliament
Despite the fact that the Indian Parliament plays a crucial role as a deliberative and representative assembly, its image and influence has suffered a serious setback in recent years. The quality of debates and deliberation, as ‘one nation with one interest’ as Burke would have said, has declined and there is less time spent on substantial matters concerning the nation and more on filibustering. There are allegations of monetarily induced lobbying; many Parliamentarians were allegedly shown by the media using spy cameras accepting money for taking up issues in Parliament or for lobbying. Parliament and state legislature often witness protest and violent scenes and there are cases of absenteeism. Most importantly there is intervention in the form of judicial legislation by the judiciary that reminds the legislature of its duties.
Complex and convoluted governmental process and big governments have resulted in the increasing role of the bureaucracy and the summoning of professional expertise. The Indian Constitution envisages a social welfare state and public-sector-led economic growth. The task of designing complex social and welfare legislation and policy formulation is getting increasingly difficult and is not always feasible, even in the hands of best of legislatures. For this, they require expert support and professional inputs, resulting in the growth of executive powers.
Over the years, the number of days on which the Houses sit to transact legislative and other business has come down very significantly. Even the relatively fewer days on which the Houses meet are often marked by unseemly incidents, including use of force to intimidate opponents, shouting and shutting out of debate and discussion resulting in frequent adjournments. There is increasing concern about the decline of Parliament, falling standards of debate, erosion of the moral authority and prestige of the supreme tribunal of the people. Corrective steps are urgently needed to strengthen Parliament's role as the authentic voice of the people as they struggle and suffer to realize the inspiring vision of a free and just society enshrined in the Constitution. Also, it is of the utmost importance for survival of democracy that Parliament continues to occupy a position of the highest esteem in the minds and hearts of the people.24
However, this does not mean that the Legislatures in India are ineffective. The Parliament has amended the Constitution on more than 100 occasions, has legislated on a variety of social and civil rights issues, such as Civil Rights Act, the Right to Information Act, and fiscal control measures such as Fiscal Responsibility and Budget Management Act. Efforts have been made to make the Executive responsible and accountable both administratively and financially. For example, the two Acts (FRBM, 2003 and RTI, 2005) are meant to make the Executive more accountable and transparent both in financial and administrative matters. FRBM Act forces Executive to achieve fixed fiscal and budgetary targets. RTI enables citizens of this country to have access to official government records and evaluate the performance of government agencies in delivering goods and services. To ensure discipline in the Legislature, one of the important steps was the Anti-Defection Act, 1985. Legislative significance was reflected in one of the significant constitutional changes that have been affected by Parliament by the introduction of local-self government (Panchayats and Municipalities) in 1992 as the third tier of governance in the Constitution.
The decline of the Parliament has further continued due to corruption and criminalization of electoral and party political processes on an unprecedented scale. An alarming increase in political and bureaucratic corruption, social and political fragmentation and the weakening of the party system, crass commercialism, and tendency towards market fundamentalism, etc. have caused a comprehensive crisis of political institutions. An institutional response to this crisis has come forward in the increasing reliance of the political system on judicial power of interpretation and review of laws and the Constitution, going to the extent of judicial activism. The political system has often appeared to be judiciary driven,25 improvising for the degeneration and a trophy of the democratic political process. But this compensatory functional response, if fraught with the dangers of continued dysfunctionalities of parliamentary and executive organs of the federal state and politicization and corruption of the judiciary. What is really needed is a balanced Constitution and allround growth of political institutionalization.
Prime Minister and Coalition Politics
The connecting link between the cabinet and the President as well as between the cabinet and the parliament is the Prime Minister. The Prime Minister's role continues to be, as Nehru used to describe it, ‘the linchpin of Government’. Nevertheless, the coalition nature of contemporary Indian Politics requires much more consultation with other parties, sometimes leading to the open articulation of defiance against the authority of the Prime Minister, a situation that would have been unthinkable during the days of Nehru. Together with the ministers, the Prime Minister controls and coordinates the departments of government and determines policy through the submission of a programme for parliamentary action. When the Prime Minister commands the majority in the Lok Sabha, his government is secure. If he is defeated on any major issue, or if a no-confidence motion is passed, he must, by the conventions of cabinet government resign. In recent times this has already happened on several occasions. In 1998, the NDA government led by Prime Minister Vajpayee fell when a no-confidence motion came up for discussion in the Parliament. More recently, the UPA government of Prime Minister Manmohan Singh escaped a similar fate. The government survived the ‘trust vote’, when a section of the opposition voted for it, making up for the votes of the communist members who withdrew their support on account of their opposition to the Indo-US nuclear deal, championed by the UPA government.
India entered into the age of Coalition Politics in the 1990s. Although Coalition Governments were in existence once or twice during the era of Late Shrimati Indira Gandhi; during 1996–1999, there were 4 Coalition Governments. When Shri Atal Bihari Vajpayee couldn't sustain the Government in 1996 due to lack of majority (i.e. 272+ seats) in the Indian Parliament after being just 13 days old, the Third Front (a group of regional parties and Non-Congress and Non-BJP combine also referred to as the United Front) formed the Government headed by Mr H. D. Deve Gowda who was in office from 1 June 1996 to 21 April 1997. The Congress Party and other smaller parties including the left provided outside support to him in order to provide a stable Government and prevent snap-polls.26
But due to rising discontent between the UF and Congress the latter withdrew support and in order to avoid elections, a compromise was reached. The Congress party agreed to support another United Front government under new leader. The United Front elected Shri Inder Kumar Gujral, and he was sworn in as Prime Minister on 21 April 1997. But unfortunately, due to some internal problems in the Government, Congress again withdrew support and mid-term elections were called after Third Front governments failed twice. This time, a cohesive bloc of political parties lined up with it to form the National Democratic Alliance headed by the BJP, and Shri A. B. Vajpayee was sworn in as the Prime Minister. Towards the end of 1998, however, the AIADMK withdrew its support from the 13-month old government. The government lost the ensuing vote of confidence motion by a single vote. As the Opposition was unable to come up with the numbers to form the new government, the country returned to elections with Vajpayee remaining the ‘care-taker prime minister’. After 4 failed Coalition Governments and 2 mid-term elections, on 13 October 1999, Shri Atal Bihari Vajpayee took oath as Prime Minister of India for the third time. The BJP-led NDA had won 303 seats in the 543 seat Lok Sabha, thereby securing a comfortable and stable majority. The Coalition Government that was formed lasted its full term of 5 years-the only non-Congress government to do so.27
The National Democratic Alliance was widely expected to retain power after the 2004 general election. However, the Indian National Congress, led by Mrs. Sonia Gandhi became the single largest party and, along with many minor parties, formed the United Progressive Alliance. With the conditional support of the leftist parties from the outside, the UPA formed a government under Dr Manmohan Singh. The alliance completed a full term and remained in power after the 15th General Elections in May 2009. Although the left no longer supports the UPA but with new allies it has been able to extend its lead in the Lok Sabha.
Since 1996, Indian Politics has been dominated with Coalition Governments which by far have been stable after a shaky start. The incumbent Prime Minister of India Dr Manmohan Singh is heading a coalition Government of 15 parties called the United Progressive Alliance (UPA) with Mrs. Sonia Gandhi, widow of Late Shri Rajiv Gandhi being its Chairperson which has now just now been elected for a second term in Office. India now looks forward to a stable future of Coalition Governments as single-party majority seem to be a thing of the past now.
The judiciary in India has emerged as one of the most crucial institutions of governance with immense moral and legal responsibilities to administer constitutional justice. Justice is the basic human law for any civilized society to function. Upholding the law is in fact the first essential, the first guidepost. No Nation or no State can survive unless it provides an efficient justice delivery system that can alleviate the concern of the people within reasonable time frame.28
Under our Constitution there is a single integrated system of Courts for the Union as well as the States which administers both Union and State Laws, and at the head of the entire system stands the Supreme Court of India. Below the Supreme Court stands the High Court of the different States, and under each High Court there is a hierarchy of other courts which are referred to in the Constitution as ‘subordinate courts’. The Supreme Court was idealized by the Constituent Assembly because the Court was seen as an extension of the rights; it was an arm of the social revolution; and as the guardian of the Constitution, it could be the expression of the new law created by Indians for Indian.29 In other words, the Supreme Court is envisaged with widespread function as an apex court in judicial hierarchy and at the same time interprets the constitution. It is a guardian of Fundamental Rights (Article 32), adjudicates upon the controversies between the States and Centre– State/s (Article 131), and is the ultimate court of appeal having Constitutional (Article 132), Civil (Article 133), and Criminal jurisdictions (Article 134). It has the power to supervise the working of the entire judicial system, and it maintains uniformity of Law ensuring high standards set by the framers of the Constitution.
The Union Executive appoints the judges of the Supreme Court and of the High Courts30 in the States as the President may deem necessary for the purpose. It is also provided by the Constitution that in appointment of a judge, ‘the Chief Justice of India shall always be consulted’ (Article 124, Clause 1). In S.P. Gupta v. Union of India (1982)31 the Supreme Court ruled that this ‘consultation’ does not imply ‘concurrence’ though there must be exchange of views as to the merits of the appointees. Subsequently, however, the Supreme Court revered this view in the Supreme Court Advocates on Record Association vs. Union of India.32 Now the advice of the collegium of judges routed through the cabinet has become binding on the President of India. Since the SCAORA decision, the higher judiciary has virtually become self-appointing, contrary to the original design of the Constitution.
The National Commission for Review of the Working of the Constitution (NCRWC) appointed by the Union Government in 2000 in its report submitted in 2002 has recommended, ‘the appointment of a National Judicial Commission consisting of the Chief Justice of India (CJI) as the chairman and two senior most judges of the Supreme Court, the Union Minister of Law and Justice’ one eminent person nominated by the President of India after consulting’ the CJI as members.33
The doctrine of Judicial Review is firmly rooted in India. There are several specific provisions in the Indian Constitution establishing the principle of Judicial Review. For instance, Article 13 of the Constitution says that any law made in contravention of the Fundamental Rights shall be void. Judicial Review refers to the power of the court to decide whether a law or an executive act is, or is not, consistent with the Constitution and the law of the land. In the event of a repugnancy between the two, the judge must uphold the Constitution or the law and must void the impugned law or the executive action. The doctrine of judicial review is a contribution of American Constitutional System. This was acquired by the American Supreme Court in Marbury v. Madison case of 1803 when Chief Justice Marshall announcing the verdict remarked that any law violating the constitutional provisions is null and void. K.C Wheare wrote that ‘In some countries although the Constitution is silent upon the question whether the courts are entitled to interpret it or not, it appears to be the accepted doctrine that courts should seldom or never embark upon the decision of such questions’.34
The Supreme Court has acquired enormous public acclaim for expanding the ambit of human right, and protecting individual and collective freedom in the midst of growing political corruption and criminality in public life. The court has relaxed the strict legal rules of locus standi (allowing a third party to petition in public interest litigation), to reach the poor and disadvantaged sections of society and to enable individuals or groups to raise common concerns arising from inefficient or dishonest governance.35 The expanded role of the Judiciary has been given the title of ‘Judicial Activism’ by those who are critical of this expanded role. The main thrust of the criticism is that Judiciary by its directive to the administration is usurping the functions of the legislatures and of the executives and is running the country, and according to some even ruining it. Although the number of public interest petitions has increased over time, Dr Anand sensitized the courts about the need for judicial restraint, when he added: ‘Care has to be taken to see that PIL essentially remains Public Interest Litigation, and does not become either Political Interest Litigation or Personal Interest Litigation or Publicity Interest Litigation or used for Persecution. If that happens, it would be unfortunate.’36
In the first PIL on prisoners’ rights, Hussainara Khatoon vs State of Bihar (I to VI), the attention of the Court was drawn to the incredible situation of Bihar undertrials who had been detained pending trial for periods far in excess of the maximum sentence for the offences they were charged with. The Court not only proceeded to make the right to speedy trial the central issue of the case, but passed an order of general release of undertrials that had undergone detention beyond such maximum period.
In Asiad Workers Case of 1982, the Supreme Court said that when a person provides labour or service to another for remuneration which is less than the minimum wage, the labour or service provided by him/her clearly falls within the scope and ambit of the words ‘forced labour’ under Article 23 of the Constitution of India.
In Bandhua Mukti Morcha vs Union of India (1984 3 SCC 161), the Supreme Court held that whenever the labourer is made to provide forced labour, the court would raise a presumption that he is required to do so in consideration of an advance or other economic consideration received by him and he is, therefore, a bonded labour.
The activism of the Supreme Court in the last decade is most evident in environmental cases, particularly cases involving the urban environment or deforestation. Thus, the court has taken sweeping and bold steps to move polluting industries out of Delhi, to improve the air quality of Delhi by forcing commercial vehicles to convert to CNG, and to stop deforestation across the country.
Pointing to orders passed on subjects like identifying buildings to be demolished, legality of constructions in Delhi, nursery admissions, number of free beds in hospitals on government land and several other decisions, it held that courts have apparently if not clearly, strayed into the executive domain or in matters of policy. In our opinion, these were matters pertaining exclusively to the executive or legislative domain. If there is a law, judges can certainly enforce it but judges cannot create a law and seek to enforce it, said a bench comprising Justices A. K. Mathur and Markandeya Katju. The judges should only act as an alarm bell, it should ensure that the executive has become alive to perform its duties. The bench said adding that it was unwilling to accept the justification given for judicial encroachment that the other two organs are not doing their jobs properly. Even assuming if this is so, the same allegation can be made against the judiciary too because there are cases pending in courts for half a century. The remedy is not in the judiciary taking over the legislative or executive functions, because that will only violate the delicate balance of power enshrined in the Constitution, but also the judiciary has neither the expertise nor the resources to perform these functions. If the legislature or the executive is not functioning properly it is for the people to correct the defects by exercising their franchise properly in the next elections and voting for candidates who will fulfill their expectations.37
Addressing a conference of Chief Justices of India in New Delhi in 2007, Prime Minister Dr Manmohan Singh said that the judiciary should not overstep its limits. He said the dividing line between the judicial activism and judicial overreach is a thin one. A takeover of the functions of another organ may at times become a case of overreach. He cautioned the judiciary against substituting its power of mandamus with the takeover of the functions of other organs.38 If the judiciary does not exercise restraint and overstretches its limits there is bound to be a reaction from politicians and others. The politicians will then step in, and curtail the powers or even the independence of the judiciary. Therefore, it should confine itself to its proper sphere realizing that in a democracy, many matters and controversies are best resolved in non-judicial setting.39
Corruption in the judiciary is hardly a new phenomenon, though it has certainly increased over the years. Having enjoyed enormous powers, including the power of contempt without any accountability; the higher judiciary has, over the years, tread on the toes of many persons and institutions.
11 May 1993 will be remembered as a black day for the Parliament and for the judiciary in this country. For on that day, 205 Lok Sabha members belonging to the Congress(I) and its allies sabotaged the impeachment motion against Justice V. Ramaswami of the Supreme Court, held guilty of willful and gross misuses of office, by abdicating their constitutional duty of voting for or against, and thus, defeating the motion by ensuring that it did not receive the support of an absolute majority of the total membership of the House.
Vineet Narain, got several Union Cabinet Ministers, Leader of Opposition, Chief Ministers, Governors and senior bureaucrats charge sheeted in the Jain Hawala Case in 1996. Despite their reluctance, he forced CBI, the Taxation and FERA depts. to take action against these influential people. In July 1997, he compelled the Chief Justice of India to comment on Hawala case. The Jain-Hawala-Militancy scam hovered around the fact that the Hawala channels through which terrorist outfits in Kashmir like Hijbul-Mujahideen used to get funds, the same channels used to grease the palms of over 115 top bureaucrats and politicians of the country. CBI, RAW and every other investigative agencies of the country tried to suppress the entire case when Vineet Narain courageously exposed the entire case.
Former CJI, Justice Y.K. Sabharwal in 2006, set in motion the process of sealing of properties in designated residential areas of Delhi which were being used for commercial purposes. This sealing went on relentlessly under the continuous supervision of Chief Justice Sabharwal's bench, monitored and directed by a Court appointed monitoring committee. When the government came up with a new master plan of Delhi 2021 which allowed mixed use and commercial activity in many of the areas and which were designated as residential, Justice Sabharwal's orders on the sealing continued.
A Rajya Sabha panel found Calcutta High Court Judge Soumitra Sen guilty of misappropriating large sums of public funds that clears the way for impeachment proceedings to begin against him in November, 2010. The report of the three-member committee, said it was of the opinion that Justice Soumitra Sen was ‘guilty of ‘misbehaviour’ under Article 124(4) read with provision (b) to Article 217(1) of the Constitution of India’. The Committee, headed by Supreme Court Judge B Sudershan Reddy, said the charges of ‘misappropriation of large sums of money’ which Sen received in his capacity as receiver appointed by the High Court of Calcutta and misrepresenting facts with regard to it were ‘duly proved’. His impeachment resolution was passed by Rajya Sabha by 187 votes in favour and 17 against on 18 August 2011. The impeachment motion was to be taken up in Lok Sabha on 5 Sept, 2011 but it was dropped as Justice Soumitra Sen had resigned as a Judge of Calcutta High Court on 1 Sept 2011.
Justice P. D. Dinakaran is the second judge after Justice Soumitra Sen of the Calcutta High Court against whose impeachment proceedings have gained momentum in recent times. Constitutional experts have welcomed the move even as there is a mix of doubt and optimism over the final result. Doubt, as the present procedure for removal of judges has never been successful. The optimism is hinged on the charge sheet, which is based on ‘extensive investigations’. The charges include possession of wealth disproportionate to his known sources of income, encroachment on public property and land belonging to Dalits and other weaker sections, irregular and dishonest administrative actions by fixing rosters of judges to facilitate dishonest judicial decisions when he headed the Karnataka High Court.
Amid serious concern over corruption in the judiciary, Chief Justice of India S. H. Kapadia asked politicians not to protect corrupt judges. Advising self-restraint, Kapadia said: ‘A judge must choose to be a little aloof and isolated from the community at large. We need a clean man in black robe to uphold the independence and integrity of the judiciary’.40
Accountability is the sine qua non of democracy. Transparency facilitates accountability. The judiciary, an essential wing of the State, is also accountable. Judicial accountability lies in scrutiny of judgments by the appellate courts. Judgments can also be subject to critical analysis and constructive and informed criticism by the legal profession, academics, the media and members of the public including parliamentarians. Another facet of judicial accountability is that, judges, if they misconduct themselves, are subject to strict discipline by the mechanisms provided under the Constitution and the law. The mechanisms should be transparent and effective whose primary aim should be to enforce accountability without impairing judicial independence.41
The Judicial Standards and Accountability Bill providing for a mechanism to deal with complaints against judges of High Courts and the Supreme Court was tabled in the Lok Sabha on 1 December 2010 by Law Minister Veerappa Moily. At present, there is no legal mechanism for dealing with complaints against judges, who are currently governed by ‘Restatement of Values of Judicial Life,’ adopted by the judiciary as a code of conduct without any statutory sanction. The bill sets judicial standards and makes judges accountable for their lapses, and mandates judges of the High Courts and the Supreme Court to declare their assets and liabilities, including those of their spouses and dependents and to file an annual return in this regard. This will be displayed on the website of the Supreme Court and the High Courts concerned.42
Structure of Government at State Level
Each state in India has a Governor in whom, as per Article 154 of the Constitution, all the executive powers of the state are vested. This power is to be exercised by him in the same fashion as the President in case of the executive powers of the Union ‘either directly or through the officers-subordinate to him in accordance with this constitution’. The pattern of government in the states in the Indian Union is of the parliamentary type. The executive head designated as the governor is a constitutional ruler and acts on the advice of the ministers who are responsible to the lower house of the state legislature. M. V. Pylee observes: ‘As in the union, the government in the states is also organized on the Parliamentary model. The head of the states is called the Governor; chief of the state govt. is called the Chief Minister, who is counterpart in the State of the Prime Minister of India.’43 His office is not subordinate or subservient to the government of India, nor is he accountable to them for the manner in which he carries out his functions and duties. His is an independent constitutional office which is not subject to the control of the Government of India.44
Article 155 provides, ‘the Governor of a state’ shall be appointed by the President by warrant under his hand and seal. He is removable by the same authority. But in actual practice, he is appointed by the central government which means by party in power at the centre. The centrally appointed Governor, who in normal circumstances, would be bound by the advice of the Chief Minister and his cabinet collectively enjoying the confidence of the majority party or coalition in the state assembly. Only during constitutional contemplated emergencies, the pleasure of the Governor is not bound by the confidence of the nonexistence House, which, during an emergency, may be either dissolved or kept in suspended animation. In such an eventuality, the Governor becomes directly answerable to the Union Govt. It is in this way that the Governor is supposed to serve both as the agent of the Centre and the agent of the State Government.
It may be said that, in general, the relation between the Governor and his ministers is similar to that between the President and his ministers, with this important difference that while the Constitution does not empower the President to exercise any function in his discretion, it authorizes the Governor to exercise some functions on his discretion. In this respect, the principle of cabinet responsibility in the states differs from that in the Union. The apex court said. ‘if the Governor cannot act in his own discretion, there would be a complete breakdown of the rule of law as much as it would be open for governments to refuse sanction in spite of overwhelming material showing that prima facie a case was made out’45.
Article 356 empowers the Governor to send a report to the President that the constitutional machinery in a state has broken down or that the state cannot function in accordance with the provisions of the constitution. On receipt of the report, the President may assume to himself all or any of the functions of the government of the state (President's Rule). Article 356 has been used more than hundred times to impose the President's Rule in different states.46 Except on two famous occasions, when the President K. R. Narayanan imposed President's Rule in U.P. (1997) and Bihar (1998), and asked the Council of Ministers to reconsider its decisions, Presidents have generally acquiesced with the recommendations of the Council of Ministers at the Centre. Reports of Governors that became easy facilitators for invoking Article 356 have been controversial. In two famous cases, namely, the removal of E. M. S. Namboodiripad's Government in Kerala in 1959 and that of S.R. Bomai's Government in Karnataka in 1989, the role of Governor has been biased as the State Governments were removed despite having the confidence of the State Legislatures. The President may keep himself informed of the affairs in the state through the reports of the Governor, which may even lead to the removal of the Ministry, under Article. 356.
The Supreme Court has held that the Court can call for the records, on the basis of which the Council of Ministers can advise the President to impose Article 356. This makes the Governor's report open to scrutiny by the Court. Further, even if the Governor has recommended dissolution of the House, this dissolution should not be affected prior to Parliamentary ratification. This makes the Governors report open to Parliaments scrutiny. Even if Parliament has approved the proclamation of the President's Rule, the Court can order the revival of Assembly and restoration of Government if it finds the proclamation unconstitutional. The Court can also grant interim relief to prevent elections to the Assembly.47
A sharp controversy has of late arisen upon the question whether a Governor has the power to dismiss a Council of Ministers, headed by the Chief Minister, on the assumption that the Chief Minister and his cabinet had lost their majority in the popular House of the Legislature. The controversy has been particularly intriguing in as much as two Governors acted in contrary directions under similar circumstances. In West Bengal, in 1967, Governor Dharma Vira, being of the view that the United Front Ministry, led by Ajay Mukherjee, had lost majority in the Legislative Assembly at a short notice, and, on the latter's refusal to do so, dismissed the Chief Minister with his ministry. On the other hand, in Uttar Pradesh in 1970, Governor Gopala Reddy dismissed Chief Minister Charan Singh, on a similar assumption, without even waiting for the verdict of the Assembly, which was scheduled to meet only a few days later. Quite a novel thing happened in Uttar Pradesh in 1998 when the Governor Romesh Bhandari, was of the view that the Chief Minister Kalyan Singh Ministry had lost majority in the Assembly, dismissed him without affording him opportunity to prove his majority on the floor of the House and appointed Shri Jagdambika Pal as the Chief Minister which was challenged by Shri Kalyan Singh before the High Court which by an interim order put Shri Kalyan Singh again in position as the Chief Minister. This order was challenged by Shri Jagdambika Pal before the Supreme Court, which directed a ‘composite floor test’ to be held between the contending parties which resulted in Shri Kalyan Singh securing majority. Accordingly, the impugned interim order of the High Court was made absolute.48
The above view has been upheld by the Supreme Court in S. R. Bomai Vs. Union of India,49 (a 9 judge bench) by observing that wherever a doubt arises whether a Ministry has lost the confidence of the House, the only way of testing it is on the floor of the House.50 The assessment of strength of Ministry is not a matter of private opinion of any individual be the the Governor or the President.51
The era of coalition politics in States expanded the scope of discretionary powers of the Governors with regard to several matters. In June 1997, the focus of the Conference of Governors and political leaders convened by the President was mainly on the theme–‘The role of Constitutional Head when following an election, no party or combination of parties appears to have secured a majority’. The issue has relevance both at the Centre and in the States in the present era of coalition governments.52
In a more recent controversy, two Bangalore advocates, in December, 2010, had written to Governor, seeking permission to start criminal proceedings against Karnataka Chief Minister, B. S. Yeddyurappa over his corruption charges following revelation that Yeddyurappa had favoured his kin with prime land in and around Bangalore. Karnataka Governor H. R. Bhardwaj allowed filing of criminal cases against Yeddyurappa over corruption charges. Yeddyurappa termed the decision as ‘broad daylight murder of democracy and justice’ and unfortunate that the governor has taken the decision, even before any preliminary enquiry or any opportunity to him in this case on a private individual's complaint.
It is argued that the role of Governor in securing a stable Government in the State is more critical than that of the President at the Centre. This is because political instability, frequency of appointment of Council of Ministers in the State either due to changes in majority or due to intermittent periods of the President's Rule in the State, arises not only due to a divided political verdict in the elections or changes in party loyalties and splits in parties, but also due to the imposition of the President's Rule. In both cases, the role of Governor is critical.
Some Constitutional and Political experts have argued that the position of the Governor as an appointee of the Centre interferes with the very principal of the governor's Constitutional duty to act upon the aid and advice of the State's Council of Ministers. Under Article 263, the Constitution provides for a Council of Ministers at the State with the Chief Minster as the Head to aid and advice the Governor in the exercise of their functions, except in their discretionary powers provided by the Constitution. G. S. Pathak, a constitutional lawyer stated that, ‘in the sphere in which the governor is bound by the advice of the Council of Ministers, for obvious reasons, he must be independent of the Centre’.53
The Sarkaria Commission submitted its report to the Union Government on 27th October 1987. It focused upon the role of the Governor, and gave recommendations regarding the Governor. Article 155 of the Constitution should be suitably amended to ensure effective consultation with the Chief Minister of a State while appointing a Governor in that State. Article 163 (1) reads: there shall be a Council of Ministers with the Chief Minister as the head to aid and advise the Governor in the exercise of his functions, except in so far as he is by or under this Constitution required to exercise his functions or any of them in his discretion. And Article 163 (2) reads as: if any question arises whether any matter is or is not a matter as respect which the Governor is by or under this Constitution required to act in his discretion, the decision of the Governor in his discretion shall be final and the validity of anything done by the Governor shall not be called in question on the ground that he ought or ought not to have acted in his discretion.
Therefore we see that this Article provides the Governor with wide-ranging powers. Since the Governor decides everything, sometime he plays a dictatorial role to fulfill partisan interests. As a result, some of the States demanded the deletion of the discretionary powers of the Governor, but the Commission rejected it. Instead, it suggested that Article 163 should be left untouched. Hence, it proposed the continuance of this power but it also said that it should be used only as a last resort. It made clear that the Governor can still misuse the discretionary powers for partisan interests, and Sarkaria Commission at least succeeded in putting a check upon them.
In the year 2004, some interesting developments took place in respect of the role of the Governor. The UPA government of Dr Manmohan Singh dismissed the four state governors for their RSS links namely Kedarnath Sahani (Goa), Vishnukant Shastri (U.P), Bhai Paramanand (Haryana) and Kailashpati Mishra (Gujarat). Shivraj Patil replying to a short duration discussion in Lok Sabha on removal of Governors denied that the Governments actions were politically motivated, and that it had not consulted the State Governments while appointing the new governors. ‘The four Governors who were removed’ he said, ‘were taking orders from political party, and had loudly proclaimed their affiliations to RSS. If some Governors are not prepared to follow the ideals of secularism and socialism as enshrined in Constitution, and choose to take their orders from the political parties or organizations that they belong to rather than from the government, what are we expected to do’, he asked. The centre has said before the Supreme Court that the President has unfettered powers to order the removal of Governors, and it cannot be questioned in any court.54
The State Legislature
While the legislature of every state should include the Governor and, in some of the states, it shall consist of two Houses, namely, the Legislative Assembly and the Legislative Council, while in the rest, there shall be only one House i.e. the Legislative Assembly (Article 168).
Owing to changes introduced since the inauguration of the Constitution, in accordance with the procedure laid down in Art. 169, the States having two Houses, in 2000, are Bihar, Maharashtra, Karnataka and Uttar Pradesh (Art. 168). To these must be added, Jammu and Kashmir which has adopted a bi-cameral legislature, by her own State Constitution. It follows that in the remaining States, the Legislature is uni-cameral.
The term of the Legislative Assembly shall be five years, unless dissolved earlier. The Council shall be a continuing House not subject to dissolution but one-third of its members shall retire every two years (Article 1972). The sessions of the State Legislatures are summoned, prorogued and dissolved by the Governor on the advice of the Speaker and/or the Chief Minister, except during Constitutional emergencies when the Governor can exercise his own discretion, usually on the directive of the Union Government. One important Constitutional requirement is: there must not be a gap of six months or more between one session of the State Legislature and another during its five year term, unless it is dissolved earlier.55
The Governor may address the legislative assembly or, in the case of the state having a legislative council, either house of the legislature of the state or both houses assembled together, and may, for that purpose, require the attendance of its members. The Governor may send messages to the house or houses of the legislature of the State, whether with respect to a bill then pending in the legislature or otherwise, and a house to which any message is so sent shall with all convenient dispatch consider any matter required by the message to be taken into consideration.56
In the State Legislature, a Bill, as regards to which the Council does not agree with the assembly, shall have two journeys from the Assembly to the Council. In the first journey, the Council shall not have the power to withhold the Bill for more than three months, and in the second journey, not more than one month, and at the end of this period, the Bill shall be deemed to have been passed by both the Houses, even though the Council remains altogether inert.
When a bill is presented before the Governor after its passage by the Houses of Legislature, it will be open to the Governor to take any of the following steps: a) he may declare his assent to the Bills in which case, it would become law at once or; b) he may declare that he withholds his assent to the Bill, in which case the Bill fails to become a Law or; c) he may, in the case of a bill other than a Money Bill, return the Bill with a message; d) the Governor may reserve a Bill for the consideration of the President. In one case reservation is compulsory, viz. where the law in question would derogate from the powers of the High Court under the Constitution. A Bill which is reserved for the consideration of the President shall have no legal effect until the President declares his assent to it. But no time limit is imposed by the Constitution.
Local Government: The Third Tier of the Federal Structure
The third tier of the federal structure is the local self governing institution in urban and rural areas. Local Government is under the jurisdiction of State Governments, which legislate them into existence. Though the tradition of local and urban bodies has been present before, and after independence, the 73rd and 74th Constitution Amendment Acts, 1992, formally made them parts of the constitution. The 73rd and 74th Constitution Amendments to the Indian constitution are the indicators of real devolution. They have ushered in a new era in Indian Politics, Administration and Government. Like all conventional federations, the Indian Constitution has a provision for two tiers of Government, i.e. the Union or Central Government and the State (Unit) Governments. But the provisions of 73rd and 74th amendments, under Article 243 and 11th and 12th Schedules of the Indian constitutions enshrine certain rights and powers to local bodies, which indicates that the Central Government is inclined to establish ‘Local Governments’ at the local level. The new additions to the Constitution shows that the government at the local level be formed; and rights related to framing of the policies and taking of decisions about matters of local importance development and public welfare be transferred to the newly constituted local government.
There is generally a three-tier structure of local government in rural areas at the village, intermediate and district level. In urban areas, there are Municipalities in forms of Municipal Corporations in cities. These local bodies are directly elected. In rural areas, Panchayats at village level are directly elected whereas Mandal Panchayat and Zila Parishads are composed of the Heads of the Panchayati Raj bodies at the next lower level. The structure of the local government reflects population diversity in practice. Reserved representation is available for schedule castes and schedule tribes proportionate to their population. and for women to the extent of +33% by the 73rd and 74th Constitution Amendment Act, 1992 for urban and rural local councils. Bihar and some other states have raised this reservation representation to women in local bodies to 50%. The 11th Finance Commission for the first time devoted a full chapter on the finances of the local self governing institutions.57
After independence, the PRIs were established throughout the country but a major thrust to the PR system was given after the Balwantrai Mehta committee recommended in 1957, the formation of a hierarchic three-tier system of rural local government in rural areas at the Village, Intermediate and District Levels. Rajasthan was the first state to establish Panchayati Raj Institutions. The principal thrust of the Balwantrai Mehta report was towards the decentralization of democratic institutions in an effort to shift decision making centres closer to the people, encourage their participation, and put the bureaucracy under local popular control. But these ideas did not pick up, and were not in operation, as the PRIs, accept in some states, were stagnating or declining, after the initial enthusiasm for their development. Therefore, several high-level committees were set up from time to time to study the ways in which they could be made more viable. These were the Balwantrai Mehta Committee 1957, Ashok Mehta Committee 1978, G. V. K Rao Committee 1985, L.M. Singhvi Committee 1987, and Thungon Committee 1988.
The Ashok Mehta Committee report recommended a two-tier system removing the blocklevel bodies. The committee considered inadequacy of resources, mainly responsible for failure of PRIs and, therefore, recommended inter alia, measures for strengthening the financial resources of PRIs. It also recommended direct party-based elections to these bodies. In the light of the recommendations of the committee, PRIs were gradually setup in almost all the states, and were contemplated to be developed as instruments of development. There was a general agreement regarding the need for increased decentralization; however a difference of opinion regarding structural pattern was also there. Many State governments, however, rejected these proposals. Subsequently, two other committees were set up to make further recommendations. These were the Rao and Singhvi Committees. The Thungon Committee, for the first time, recommended the need for constitutional recognition for strengthening the PRI system. Accordingly, the 64th Amendment bill was drafted, placed before Parliament in 1989. The bill was passed in the Lok Sabha, but could not be passed in the Rajya Sabha.
The draft of 64th Amendment opened the subject for countrywide deliberations and discussions. There was an imperative need to ensure the basic features of Panchayati Raj Institutions in the Constitution itself and to provide them certainty, continuity and strength. On the basis of the overall consensus arrived from these discussions, the Constitution (73rd Amendment) Act 1992 came into force with effect from 24 April 1993. It lays the foundation of a strong and vibrant Panchayati Raj Institutions in the country.
The state government should transfer the responsibility of policy making and its execution regarding subjects of local development and welfare to these local bodies. Attempt has been made to confer the status of ‘Autonomous Government’ to Panchayati Raj and Municipal Bodies by giving them subjects of local importance in the 11 and 12 Schedules of the Constitution. The subjects offered to the local bodies under the 11th and 12th Schedule, however, do not form a part of the subjects falling under the Central control.
The statutory Panchayat Raj Institutions set up by various state governments were a far cry from Gandhi's dream of ‘Gram Swaraj’ and JP's plea for Swaraj for the people. Even the 73rd and 74th Constitutional Amendments that have put the local self governing institutions on the constitutional footing have not substantially lifted them to a stage of functioning to justify such sentiments that extol the Panchayati Raj having graduated ‘from Legislation to Movement’.58 These dreams and sentiments would materialize only after India's full transition to a bourgeois democratic revolution. However, the 73rd and 74th Amendments to the constitution have raised fresh and high hopes that now the state governments, sooner or later, will have to give due rights and powers to Panchayati Raj and other local bodies as provided in these amendments. The dream of former President Abdul Kalam of making India a developed country by 2020 can come true if the local institutions are supported by the Government and bureaucracy and rural people become aware of their rights.
India has a Constitutional Government, and its Constitution that commenced on 26th January 1950 is one of those rare Constitutions of the Afro–Asian World that has continued uninterrupted for over six decades except for a brief interlude of the emergency in 1975–77. We may conclude this chapter with the brief discussion on the process of amending this Constitution and the theory of the basic structure of the Constitution propounded by the Supreme Court of India.
The Indian Constitution has provided a combination of flexible and rigid amending procedure. Article 368 deals with the amendment of the Constitution and lays down the following procedure. Firstly, amendments with respect to certain subjects required approval by the majority of the total members in each House of the Parliament separately and by a majority of not less than the two-thirds of the members present and voting, plus ratification of not less than one-half of the State Legislatures. These matters include: i) Election of the President, ii) executive powers of the Unions and State, iii) High-Courts for Union Territories, iv) powers of the Supreme Court and High-Court, v) legislative relationship between the Union and the State, vi) list in the Seventh Schedule, vii) representation of the States in Parliament and viii) provisions of Article 368. Secondly, amendments with respect to other subjects require approval by a majority of the total members of each House of the Parliament separately and by a majority of not less than two-thirds of the members present and voting. Thirdly, many issues require only simple majority in each House for effecting changes, such subjects include passing law by the Parliament with respect to the formation of new State and alteration of areas, boundaries, or names of existing States.
In case of disagreement over legislation between the two Houses, the Constitution provides for a joint sitting of the two Houses to break the deadlock by a majority decision. However, in case of amendments, the Constitution is silent about joint session. Therefore, if the two Houses disagree, an amendment bill is practically killed. Thus, each House enjoys a veto power over an amendment.
The scope of the amending power of Parliament–whether this power is absolute and unlimited, or subject to certain limitations– has been a matter of debate. In the famous case of Keshvananda Bharati v. State of Kerala (1973), the Supreme Court held that the Parliament could change any provision of the Constitution but the ‘basic structure’ of the Constitution could not be altered. In the Keshvananda Bharati case (1973), the court held the following as the basic features of the constitution: a) supremacy of the Constitution; b) republican and democratic form of the government; c) secular character of the Constitution; d) separation of powers; e) federal character of the Constitution; f) sovereignty and unity of India and individual freedom. In the Indira Gandhi v. Raj Narain case (1975), the following features were further added: a) equality of status and opportunity; b) secularism and freedom of conscience; c) rule of law; d) the character of the nation as a sovereign democratic republic. In the Minerva Mills case (1980), the court further added the following features as unalterable: a) amending powers of the Parliament; b) judicial review; c) balance between fundamental rights and directive principles.
Strengthening the ‘Basic Structure Doctrine’, the Supreme Court in S. R. Bomai v. Union of India, AIR 1994 SC 1918 held that secularism is one of the basic features of the Constitution. That concept was very much embedded in our constitutional philosophy, and what was implicit earlier has been made explicit by the Constitution 42nd Amendment in 1976. In this case, the decision of the President under Article 356 was also held to be reviewable. These trends set by the Court establish well that the judiciary in India has wide powers that go even to the extent of reviewing Constitutional amendments, not only legislative and executive acts.
|Constitutional Amendment Act||Objectives|
|First - 1951||A new constitutional device, called Schedule IX was introduced to protect laws that are contrary to the Constitutionally guaranteed fundamental rights. These laws encroach upon property rights, freedom of speech and equality before law.|
|Seventh - 1956||The Seventh Amendment brought about the most comprehensive changes in the Constitution. This amendment was designed to implement the State Reorganization Act. The Second and Seventh schedules were substantially amended for the purpose of the States Reorganization Act.|
|Twenty Fourth - 1971||It amends Article 13 and 368 with a view to removing all possible doubts regarding the power of the Parliament to amend the Constitution and procedure thereof. It gets over the Golak Nath ruling and asserts the power of the Parliament, denied to in the Golak Nath, to amend fundamental rights.|
|Thirty Eighth - 1975||Provided that the President can make a declaration of emergency, and the promulgation of ordinances by the President, Governors and the Administrative Heads of UTs would be final and could not be challenged in any court. It also authorized the President to declare different kinds of emergencies.|
|Forty Second - 1976||Provided supremacy of Parliament and gave primacy to Directive Principles over Fundamental Rights. It also added 10 Fundamental Duties. New words-Socialist, Secular and Unity and Integrity of the Nation, were added in the preamble.|
|Forty Fourth -1978||The Right to Property was deleted from Part III. Article 352 was amended to provide ‘Armed Rebellion’ as one of the circumstances for declaration of emergency.|
|Sixty First - 1988||This Amendment reduces the voting age from 21 years to 18 years for the Lok Sabha and Assembly election.|
|Seventy Third - 1992||(Panchayati Raj Bill) Provided among other things Gram Sabha in Villages, constitution of panchayats at the village and other levels, direct elections to all seats in panchayats and reservation of seats for the SC and ST and fixing of tenure of 5 years for panchayats.|
|Seventy Fourth - 1992||(Nagarpalika Bill) Provides for, among other things, constitution of three types of municipalities, reservation of seats in every municipality for the SC and ST, women and the backward classes.|
|Eighty Sixth - 2002||Makes education a fundamental right for children in the age group of 6–14 years.|
|Ninety First - 2003||Amended the Anti-Defection Law, and also made a provision that the number of ministers in the Central & State Governments cannot be more than 15% of the strength of Lok Sabha & respective Vidhan Sabhas.|
|Ninety Third - 2005||To enable provision of reservation for other backward classes (OBC) in government as well as private educational institutions.|