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INSTITUTION

A question of the right balance

Sixty years ago, the Founding Fathers undertook the ambitious task of drafting a Constitution for India. Three years later, K. Hanumanthaiah, a former Chief Minister of Karnataka, expressed disappointment with the work-product of the Constituent Assembly. “We wanted the sweet notes of the veena,” he complained, “but we were given the music of an English band.”

The parliamentary system of government set up under our 1950 Constitution — “the music of an English band” as Hanumanthaiah put it — is based on a neat division of governmental functions: separate provisions for the Executive at the Centre and in the States; separate articles for Parliament and State Legislatures, and separate clauses for the Union Judiciary. And yet the tilt in the balance of power is all too apparent: because both at the Centre and in the States the Executive shares with the legislative bodies law-making functions: exercised through ordinances to be issued only when elected Assemblies are not in session (Articles 123 and 213). Promulgation of law by ordinance is impermissible in the United Kingdom: but in Independent India the anachronism survives, a relic from our colonial past, borrowed from the provisions of the Government of India Act, 1935.

Besides, no period is prescribed by the Constitution for the duration of law-making sessions of Parliament (or State Legislatures). There is no prescription even as to when its members are to be “summoned” — this is left entirely to the discretion of the Executive, both at the Centre and in the States. In fact, Parliament and the State Legislatures meet, on an average, less than a hundred days in a year — and when they do meet, sometimes its members will not work.

Effective parliamentary power therefore rests in the hands of Ministers of Government: England’s former Lord Chancellor, the Lord Hailsham, once described the “Executive” in the U. K. (which also professes a parliamentary system of government) by its more appropriate name — “the Executature.” So it is in India. Hardly any Bill introduced by a “private member” ever becomes law, and every MP and MLA is a private member unless he or she is a Minister. When Parliament and State Legislatures assemble they do so primarily to transact government business: in a week of sittings only Friday afternoons are reserved for private members’ Bills. And hardly any Bill introduced by a private member ever gets passed into law. The motions are gone through, more as a debating exercise, in order to draw the attention of the government of the day to one or another inadequacy.

The tilt in the balance of power shifts back a little in favour of the legislative wing of state — in the working of our Constitution. Since the government of the day is dependent for its survival on the confidence of elected representatives (in the House of the People at the Centre and in the Legislative Assemblies in the States), the Executive remains all-powerful only so long as the Council of Ministers retains the confidence of “the House.” Once that confidence is lost, the government must resign or call fresh elections. This deliberate scheme of checks and balances in our Constitution is known as the “doctrine of ministerial responsibility.”

There is one other impediment in the way of an otherwise all-powerful Executive becoming too overpowering. This relates to the control of the “purse strings” — which under our Constitution is vested only with the elected legislatures. All revenues received by the Government of India and the government of a State must go into the “Consolidated Fund of India” or “Consolidated Fund of the State” (Article 266). No monies can be withdrawn from the Fund except under appropriations made by enacted law (Article 114 and 204); appropriations by Ordinance are simply not permitted.

Hence, Parliament and State Legislatures meet and conduct government business primarily because financial control remains with the elected representatives of the people, not with the Executive. This is a constitutional safeguard against the “Executature” degenerating into a dictatorship.

The supreme constitutional authority that supervises all financial matters at the Centre and in the States is the Comptroller and Auditor General (CAG) of India. He is appointed by the President — and can be removed from office only by means of a motion passed by a two-thirds majority of Members of Parliament. His reports relating to the accounts of the Union must be submitted to the President, who must cause them to be laid before each House of Parliament. In relation to the States, his reports must be submitted to the Governor who must cause them to be laid before the State Legislature. The CAG’s office exercises a restraining influence on the all–powerful Executive. And the officials in that office are absolute sticklers for rules: as illustrated by that somewhat apocryphal, but charming, story related in the autobiography of John Masters (Bugles and the Tiger).

It appears that way back in the 1940s a certain Lieutenant Dishington stationed in Multan fell in love with an Anglo–Indian girl. He robbed the battalion chest of its money and eloped with her, taking the train to Lahore (which was in British India). His superior, the Major, followed him — by train. He found Dishington outside Faletti’s Hotel. But the Lieutenant with his girl gave him the slip by jumping into a taxi; the Major promptly got into another taxi and chased him all round town. Ultimately poor Dishington was caught and made to part with the balance of the battalion’s money. The Major then returned to Multan, and claimed reimbursement for train and taxi fare from the Office of the CAG. But the claim was rejected on the ground that the Major should have used his horse (provided to him by the Army) to apprehend the erring Lieutenant, instead of incurring “wasteful” expense in traveling by train and taxi….

Some years ago, I asked India’s distinguished CAG, S. Ranganathan, whether this story could be true. “Rangi” only smiled, and said: “My dear Nariman: If the babus in the Auditor General’s Office didn’t stick to the book, this country would have become bankrupt soon after Independence.”

He was right. The CAG was described by Dr. Ambedkar (in the Constituent Assembly), as the “most important officer in the Constitution.” He still is. And those in power are always respectful — often a bit over-awed — by that personage. His reports are often the subject of no-confidence motions in Parliament and in State Legislatures.

Then there is the third limb of the state, the Union Judiciary: the High Courts and the Supreme Court where in practice the balance of power is made to shift by judicial diktat more definitively in favour of judicial control over almost every activity in the country. It was an all-powerful Executive that was called to account in January 2006 before the highest judiciary: since the government of the day was unable to satisfy a majority of the Constitution Bench of the Court that its action was bona fide, the dissolution of the Bihar Legislative Assembly by Presidential Proclamation (a purely Executive function) was struck down as being “unconstitutional.”

More recently, in January 2007, when in exercise of its constitutional “privileges” Parliament expelled a group of its members “seen” taking cash for questions, the Supreme Court stepped in to inquire into the constitutional validity of the expulsion orders. Ultimately the court upheld the orders, but the argument that Parliament’s power to expel its members was beyond judicial review was rejected.

The supremacy of the judiciary is written into the provisions of our Constitution. Though framed on the Westminster model, the Constitution of India 1950 also contains a Bill of Rights. It is because of the Fundamental Rights set out in Part III that Parliament is not wholly supreme — as is the Parliament in the U.K. Laws passed by our Parliament and by our State Legislatures can, and are, declared void by the superior courts when they infringe any of the Fundamental Rights or transgress constitutional limits.

And as to whether they do or do not, the final word is with India’s Supreme Court. Even the constitutional validity of laws (including laws amending the Constitution) are subject to judicial scrutiny: under the court-evolved doctrine of “basic structure.” In January 2007, a nine-judge Bench of the court unanimously negatived the government’s contention that State and Central laws that were placed in the Ninth Schedule by constitutional amendment were immune to judicial scrutiny, citing violation of fundamental rights.

In this 60th year of our Independence we have reached a stage where all laws made by Parliament, all decisions by governments at the Centre and in the States, are turned over to what has been deprecatingly (but not inaccurately) described as “the Government of Judges.”

Like it or not, the balance of constitutional power will remain in favour of the courts — but only so long as our judges are perceived to be persons of exceptional competence and of high moral integrity. If that perception changes (God forbid!), the constitutional system as it now operates will break down. Sixty years after Independence the people have come to trust the courts: but the people’s trust rests in confidence — sometimes rudely shaken by gossip, rumour and a lack of transparency.

In this 60th year of Independence, then, there is much to be done by the higher judiciary to maintain its bright image.