Towards A Finer Balance of Power- On The Indian Constitution

Introduction

Indian constitution envisaged a representative parliamentary democracy where the executive will be responsible for its actions to the parliament, which was to be singularly responsible for both legislative and constituent functions. The judiciary, the third arm of the government apparatus, was entrusted with the responsibility of guarding the spirit of the constitution and its interpretation. The constitution makers made it the way it is today in a unique socio-political scenario, and the document in large part reflects the reality of those days. Indian polity has changed by many shades, and the constitution too has evolved along with the changes.

The Structure of the Paper

The landscape of polity has witnessed changes that have from time to time tended to contravene the spirit of the constitution. We shall analyze the lacunae in the constitution which permit such contraventions, giving the principal actors (more specifically the executive) perverse incentives to act, in their self interest, in a way that violates the spirit of the constitution. As the main theme of this paper, we shall address one lacuna in the constitution vis-à-vis the balance of power between the executive and the legislature, and also deal in some detail about an expanded role for the courts in matters of constitutional concern.

Issues affecting Executive and Legislature

1)    The Rise of Coalition Politics

Over the past six decades, social and political transformations in the country have ushered in an era where previously marginalized interest groups have been able to politically organize themselves so much so that the country has moved, perhaps irreversibly, from a single party government to an era of coalition politics. The experiences of the past 21 years only further strengthen this hypothesis. Starting from the 1989 elections the Lok Sabha has never witnessed a single-party majority. One important consequence of this is the rise of the small regional parties, which have amassed powers way beyond what their numbers in the Lok Sabha justify. They, sort of, punch above their weights. Although this process is a logical consequence of the slow ‘federalization’ of politics in India, which is healthy, it has had a debilitating effect on the working of the executive, where the opinion of the majority in the cabinet has been sacrificed at the altar of the vested interests of ministers belonging to coalition parties, who owe more allegiance to their party leader than to the cabinet. Coalition leaders, even at the centre, tend to think regional than national which has had, and will continue to have adverse effects on cohesive national policy making. This phenomenon has not just weakened the collective responsibility of the cabinet, but has made the executive a bargaining equilibrium between few vested interests rather than an efficient administer on behalf of all people.

2)     The weakening of the legislative control over executive

The increasing incidence of vitiation of due legislative process to suit the convenience of the executive is yet another issue that is at the heart of the current rot in the political system. This will also be a key focus further ahead in the paper. The ease with which strong executives under someone like Mrs Gandhi could bend the long arm of the law and the precepts of the constitution to suit their vested interests clearly points to a glaring lacuna in the separation of executive from the legislature. The passing of the budgets without a discussion and by voice votes, passage of legislations without much debates in the recent times also point to the increasing irrelevance of legislative oversight over the executive.

An Analysis of the Issues

 The government system in India is modeled on the British Westminster system where there is no formal separation of legislature and executive. That system evolved out of the necessities of 17^th century England, an analysis of which is outside the scope of this research. Given the different nature of society and polity in this country, and the drastic changes in both since independence, ways and means to separate legislature from executive, within the constraints of the Westminster system, have to be derived.
In most democracies the legislature exercises checks and balances over the executive in two ways

1. Legislative Powers
   
2. Oversight Power

Through the exercise of its legislative powers, the parliament frames the laws of the country, whose contours define the limitations of the executive administration. Through its oversight powers, which are generally exercised through its legislative committees, the parliament holds to-account the decisions taken by the executives, and the latter’s functioning at large.

As the system stands today, the executive is formed by the majority faction (party or coalition) in the Lok Sabha, the lower house. Once, the government is formed it only requires a simple majority (which it already has) to pass most types of legislations. Only certain provisions of the constitution are an exception to this inherent advantage enjoyed by the government of the day (as they require a special procedure and, in some cases, a special majority). The implication here is that once a government is in place, the opposition is as good as being rendered impotent. This is one reason why you see the opposition resorting to unruly behavior and stalling parliamentary sessions to prove their point. But even this behavior, as Bimal Jalan and others have illustrated¹, is mostly unsuccessful in coming in the way of the executive’s resolve. The other implication is that, by the virtue of its majority in the lower house, and by the fact that the bargaining power of the upper house vis-à-vis the lower is less², the executive effectively arrogates the legislative powers of the parliament. This happens because of primarily the followning reasons:

1. The party ‘Whip’
   
2. The Non- Binding, suggestive nature of the powers of the house committees
   
3. Stringent limitations on Private member Bills
   
4. Delegated Legislation
   

1. The Party Whip: This is a mechanism to ensure the presence of party members during legislative voting, and to make them toe the party line. The Anti Defection law of 1985, brought in by the 52^nd amendment has almost made it impossible for members to defy party whips, which they can do so only at the risk of imminent disqualification from the house. This ensures that no part member ever defies the party line. Though, in the current system, it is seen as a progressive legislation that prevents engineering of defection through malpractices, by default it leaves the government at a permanent advantage with respect to the opposition, and rests effective legislative power in the former’s hand.

 2. The Non- Binding, suggestive nature of the powers of the house committees: The standing and select committees of the house which have the responsibility of analyzing the draft executive bills before they are passed can only suggest changes that may or may not be accepted by the government. This implies that, unlike in the US congress where such committees have huge “gate keeping powers”, the government can still manage to override the suggestions of these committees which are more often than not representative of the proportional strength of various parties in the house.

3. Stringent Limitations on Private member’s right to legislate: Current parliamentary procedures consider any legislation not introduced by the government as a private member’s legislation. The procedure that governs such legislation is very stringent and lengthy so as to prevent an overflow of such requests from members. Though sensible from an efficiency point of view, the procedure unwittingly allows mostly government legislations to be tabled. This has had such a disastrous effect on an ordinary legislator’s right to introduce a bill that in the first 20 years only 14 private member bills have seen the light of the day as law in the statue books. No Private member bill could become a law since then.³

4.The Joint parliamentary committee is an oversight committee which investigates the matter for which purpose it is temporarily constituted from time to time. Though the executive influence on its formation is less, its powers are limited in that they cannot requisition all information from government departments (unlike in the US congress), and ministers are rarely summoned to depose before it. Its recommendations are not binding on the legislature. Thus oversight powers, of the parliament, are not as strong as in some other countries.

If such are the problems involved in the effective legislative control of the executive, the fractiousness of the legislature adds instability in the executive. With the dawn of the coalition era, single party governments have become a thing of the past. With politics becoming more federal, small regional parties have come to hold, through tactical coalition with large national parties, power disproportionate to their actual strength. This has substantially increased their bargaining power within the coalition.⁴

Some of the problems in coalition politics that have long standing debilitating effects for proper executive functions are:

1. Coalition partners are not subject to the anti-defection law, which implies that even as they align with a party for elections and contest them on a common platform, there is no legal or constitutional bar on them to withdraw support to the government before the completion of the term. Thus it poses a problem of credible commitment even as it becomes a bargaining factor for partners.     
2. Coalition governments are more prone to vitiating the collective responsibility of the cabinet, as the ministers belonging to partners have higher loyalty to their own party leadership than to the cabinet. This has negative consequence for the executive as policy making becomes vulnerable to parochial interests of the coalition partners. This eventually leads to the paralysis of governance. ⁵
3. The problems of credible commitment and vested interest that have been discussed above thus shorten the horizon of the executive, making it work more for its own survival than for proper administration of the country.
   

Solution

Executive Stability and Credible commitment

1. The Lok Sabha shall have a fixed 5 year term.
   
2. All pre-election coalition partners, either though a formal arrangement or by Estoppels, would have to stay in the coalition for at least 3 years. Post-election partners who extend support to the government shall have to stay in the coalition for at least 2 years from the date of extension of support.
   
3. If any time in the middle of the term, the government loses the no-confidence motion, the official opposition party shall be invited to form the government. If a deadlock still persists, a government of national unity shall be automatically constituted with the cohabitation of as many parties, in the order of their strength in the parliament, as is required to get a simple majority.
   

   (1), (2) and (3) ensure that coalitions elected by their vote base as a single unit do not fall prey to the partisanship and machinations by smaller parties. By giving an implicit fixed term of at least 2 years, these measures stabilize the executive’s horizon. Also, by forcing the largest parties in the house to form cohabitation (3) ensures that smaller parties in the coalition think hard before destabilizing government.
   

4.     At any time in the middle of the term, the smaller coalition partners can change the prime minister by a vote that is not less than 1/3^rd the strength of the ruling coalition. This change of prime minister shall not constitute a fall of government, and hence would not attract provisions of (3).

Clause (4) ensures that the largest partner, protected by (1), (2) and (3), does not become an autocrat. Also, given the disparate nature of the smaller parties, it is reasoned that they would not resort to (4) unless the largest party has alienated a substantial part of them.

Thus, we propose to solve the credible commitment problem, and sustain the coalition such that it is in nobody’s interest to break it.

Legislative reform

1. Party whips can be issued only in the case of no-Confidence motion and the budget. In the matter of all other legislative processes, there shall be no whips, and voting shall be through a secret ballot.
   
2. The Rajya sabha shall be directly elected by people, with 5 representatives from each state. Any matter related to the states, vis-à-vis dismissal of state governments, central grants to states shall not materialize without a 2/3^rd approval in the Rajya sabha. Secret ballot voting shall be the norm here as well.
   
3. There shall be constituted an Executive Oversight committee, with membership proportional to their strength in the LS, inclusive of all national and state parties. The members shall be from both LS and RS in the proportion of 2:1.
   
4. There shall be constituted a constitutional court, under the aegis of the Supreme Court with the CJI as its head. Other members of the court shall be elected from among retired SC and HC judges by the SC Collegium. It shall have the power to squash any executive or legislative action in contravention of the constitution.
   
5. The judgment of the CC can be challenged in the Supreme Court, or overturned by 2/3^rd majority in both the houses of the parliament.
   
6. The hearings of the EOC shall be in public. It shall have the powers to summon ANY executive functionary to its hearings, and shall be in its rights to demand ANY information from the government. Any act of executive misdemeanor could be enquired by the EOC on the demand of 25% of the MPs of the Lok Sabha. The EOC shall file its report, vote on the issue, with dissenting notes, and refer it to the CC. The CC shall, if it finds the charges true, order the dismissal of the cabinet under the principle of collective responsibility.
   

   6A) this does not mean the fall of the government of the ruling coalition. Instead the same coalition shall now constitute a new cabinet without a single member from the existing cabinet.
   

Clause 1 serves two purposes…

1. It ensures that the government at the centre is stable
   
2. It makes the legislative independent of the executive and thereby equally powerful (this forces the executive to negotiate with the opposition).
   

Clause 2 ensures that while on one hand the larger states with greater population are represented in the Lok Sabha, the smaller states which have been getting marginalized over the past 60 years will also find level playing field in state-related matters at the Parliament and the states’ fate wouldn’t be completely at the executive’s prerogative.

Clause 3-6 incentivize the ministers in the cabinet to keep a strong check on each other, enhancing the legislative oversight. Though the Supreme Court, through the CC has been given sweeping powers, these have been checked by Clause 5. Clause 6A ensures the continuation of the ruling coalition albeit with new faces, thus restricting the courts from conspiring to overthrow the existing coalition in power.

 ……………………………………………………………………………………………………..

 (This is an academic paper jointly authored by 4 young scholars- Abhishek Chandra, K.S Rangesh, Chirantan Shah and Abishek Jangir)

Footnotes and References:

^{1 –} Bimal jalan’s “indian’s Politics” – Chapter called “corruption of Politics”

^2- Subhash Kashyap’s “Our parliament” – Chapter on Legislative Processes – The RS has a perennial disadvantage because, in case of a deadlock, the bill is passed by a joint sessions of both houses, in which the LS mostly has the upper hand.

^3- Ibid.

^4-
Vishny and Schliefer have shown how even in democratic governments, the rulers try to maximize utility for their own constituent group.

^5-
Bimal Jalan’s “India’s Politics” discusses how coalition governments have consistently proven to hae ministers that have a higher loyalty toward their party. The examples of DMK and TMC are worth citing here