Unaccountable Delhi: India’s Separation of Powers’ Doctrine

UNACCOUNTABLE DELHI

India’s Separation Of Powers’ Doctrine

First published in The Statesman Jan 13 2006 Editorial Page Special Article,

By Subroto Roy

The Speaker does not like the fact the High Court has issued notices questioning the procedure he followed in expelling MPs from Parliament. Sonia Gandhi’s self-styled “National Advisory Council” has demanded control over disbursement of 100,000,000,000 rupees of public money. The Manmohan Singh Government plans to quietly ignore the Supreme Court’s finding that it had breached India’s Constitution in imposing President’s Rule in Bihar.  All three issues have to do with application of India’s Separation of Powers Doctrine, i.e. the appropriate delimitation of Constitutional powers between our Legislature, Executive and Judiciary.

A constitutional crime was attempted in India during the Indira-Sanjay Gandhi political “Emergency” declared on 26 June 1975. On 10 November 1975 (a time of press censorship) a 13-judge Bench of the Supreme Court met to hear the Government plead for overrule of Kesavananda Bharati (A.I.R. 1973 S.C. 1461), a landmark Nani Palkhivala once called “the greatest contribution of the Republic of India to constitutional jurisprudence”. Within two days, the Government had failed in the Court, and Kesavananda held. What was upheld? That while India’s Parliament was sovereign and could amend the Constitution, the amending power may not be used to alter or destroy “the basic structure or framework of the Constitution”. And the Supreme Court decides for itself whether Parliament has exceeded its legitimate power to amend.

Basic structure
Palkhivala’s description of what constitutes the “basic structure or framework” of India’s Constitution is excellent enough: “the rule of law, the right to personal liberty and freedom from arbitrary arrest and imprisonment, the right to dissent which implies the freedom of speech and expression and a free press are… a part of the basic structure of a free democracy, and it is these priceless human freedoms which cannot be destroyed by Parliament in exercise of its amending power. Thus Kesavananda’s case ensures that tyranny and despotism shall not masquerade as constitutionalism.”

Palkhivala argued that, if anything, the aspects of Kesavananda that needed to be set aside were those that had over-ruled Golaknath (A.I.R. 1967 S.C. 1643) which said Parliament should not be held to have the power to abridge any fundamental right, indeed any amended article which abrogates any fundamental right is invalid.

Dicey said “In the principle of the distribution of powers which determines its form, the constitution of the United States is the exact opposite of the English constitution.” Kesavananda Bharati showed the midway point between the two in constitutional jurisprudence anywhere in the world. We are like the Americans and unlike the British first in being a Republic, and secondly in having an explicit written Constitution. We are like the British and unlike the Americans in being a parliamentary democracy where the Executive Branch of Government, namely the Prime Minister and his/her Cabinet is elected from within the Legislative Branch of Government, namely, Parliament, and must at all times retain the confidence of the latter, specifically the Lok Sabha, the House of the People.

The American Executive Branch has a directly-elected President who chooses his administration, and it is commonplace for him to not have the confidence of the Upper or Lower House of the Legislature, to the point that one recent president had to undergo impeachment proceedings and barely survived. There is no constitutional crisis in America if the Legislature loathes the President and wishes him out. The American President and his Executive Branch stay in office until the last minute of his fixed term.

PM answers to Parliament
In our system, the Prime Minister answers at all times to Parliament. Parliament in India’s democracy has normally meant the House of the People — where every member has contested and won a direct vote in his/her constituency. India’s current Lok Sabha has set a constitutional precedent not seen in more than a hundred years anywhere in electing an Executive led by someone not a member. The British Upper House used to have an aristocratic hereditary component which Mr Blair’s New Labour Government has removed, making it more like what the Rajya Sabha was supposed to be — except that by now our Rajya Sabha has tended to become a place for party worthies who have lost normal elections, superannuated cinematic personalities, perpetual bureaucrats still seeking office, and others who really should be at home helping to raise the grandchildren.  Parliament may not have fully recovered its health ever since that constitutional crime committed against the Republic known as the Indira-Sanjay “Emergency” (and at least one member of Sanjay’s coterie wields much power today).

Crimes and misdemeanours
The Supreme Court’s finding that the Government breached the Constitution by imposing President’s Rule in Bihar is a finding not of a constitutional crime but of a constitutional misdemeanour. (For reasons given already in these columns on 20 October 2005, it has nothing to do with the President, who merely embodies the sovereignty of our Republic.)  For an Executive Order or Legislative Act to be found by a competent Court as being unconstitutional means merely that it does not have to be obeyed by citizens. In the Bihar case, the Supreme Court found this consequence irrelevant because new elections were already in process, the result of which would come from the most authentic democratic voice possible, namely, the same people who elect the House of the People in the first place. India’s Executive has been found to have committed a constitutional misdemeanour, for which it needed to apologise to the Court and Parliament (who are its constitutional co-equals) and then ask the latter to renew its confidence — in which event, life goes on. If confidence was not renewed, the Government would fall and a new Government would have to be formed. But we do not have yet the idea of a backbench revolt —mainly because all the front benches themselves have tended to be in such confusion and disarray with regard to parliamentary traditions, processes and functions.

The Supreme Court as the ultimate protector of the Constitution would be well within its prerogative to oversee whether a Parliamentary Speaker has acted appropriately. Consider a hypothetical case. Once elected, a Speaker is supposed to have no party-affiliation ever more for the rest of his/her life. Suppose, hypothetically, a controlled experiment found a Speaker systematically biased in favour of his/her own former party-members and against their opponents. Where but the Courts could such arbitrariness be effectively remonstrated against? Even if the incumbent Speaker impossibly imagines himself the personal embodiment of the Legislative Branch, he is not beyond the Constitution and therefore not beyond India’s Separation of Powers’ Doctrine.

The Opposition had alleged that the Speaker failed to follow procedure which required the culprits in the expulsion case be referred to the Privileges Committee. But beyond that the Opposition was too confused and guilt-ridden to pursue the matter during the dying moments of Parliament’s Winter Session. In the clear light of day, the issue has now ended up in the Courts. If the Supreme Court eventually rules the Speaker had in fact failed to follow Parliament’s own procedures (and hence breached Constitutional practices), the Speaker would need to apologise to the Courts and the House that elected him, and perhaps offer to fall on his sword.

Finally, for the “National Advisory Council”, a wholly unelected body, to demand a say for itself over spending Rs. 100 billion in State and Union Government budget-making, would be another constitutional misdemeanour — unless its members are merely on the personal staff of the Hon’ble Member representing Rae Bareili, who may of course introduce whatever legislation on money-bills that any other Lok Sabha Member may do.

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My March 25 1991 memo to Rajiv (which never reached him) is something the present Government seems to have followed: all for the best of course!

The first time I met Rajiv Gandhi was on September 18 1990 and the last was on March 23 1991.    The full story of that encounter has been told here and in print. I had been asked to stay on in Delhi for a few days for a possible follow-up meeting in case questions needed to be addressed but in the rather confused circumstances at the time during an election campaign, that never happened.

Before leaving Delhi, I gave the fellow-advisers in my group the following document  authored by myself dated March 25 1991.   The group’s last meeting with Rajiv was on March 23 1991 as has been told elsewhere.   It had first met on September 25 1990 following my September 18 1990 meeting with Rajiv — so, in a sense, I was its first member.

Yet, unfortunately, in November 2007, one member of the group, who today apparently remains close to political power in New Delhi, chose to be publicly mendacious about  all this  — alleging Manmohan Singh (who himself has never made such a a claim) was part of the group while erasing, in the best traditions of Stalinist totalitarianism, my name and work in an ultimately unsuccessful attempt to write a false history.   I was compelled to expose this mendacity,  an exposure that can be found elsewhere here.

Even so, I am glad to see the Congress Party still may have learnt from what I said because there are identifiable similarities between what they have done at the start of the second Sonia-Manmohan Government a few weeks ago, and what I had said in the March 25 1991 memo which, though it did not reach Rajiv, may have remained in some recipient’s files.  Of course, if so, it is possible the mendacious have been taking undue political credit for its content:  Aristotle said the virtues tend to be found together, and so too the vices  — those who are mendacious are also likely to be, to make the point  euphemistically, disrespectful of the property rights of others in favour of themselves (or, to put it bluntly, thieving).

As I have said elsewhere,  Rajiv himself had said at our last  March 23 meeting he wished to meet me alone and would be arranging it but that was not to be.  Nor, to repeat, did he get to see this document, which I have today found again in my files and is published below unaltered.

Subroto Roy July 12 2009

“ON THE ART OF GOVERNMENT: EXPERTS, PARTY, CABINET & BUREAUCRACY

There are today (March 25 1991) less than 60 days to what we should assume will be a Congress victory. When Congress is returned to power, it should be ready from Day One to start implementing the policies in its manifesto. The initial momentum of victory should not be allowed to diminish into complacency at any point during the entire life of the Government. The strategic mistake of the 1984-89 Government must be avoided. This was to get euphoric, think that everything could be done quickly, lose momentum when realities catch up, then becoming vulnerable to an attack like Bofors which brings everything else down. We have to keep continuous control of the public agenda, and not let it slip into the hands of the Press or the Opposition for any significant amount of time.

Cycle of Political Action

Policy-making and implementation should be a continuous cyclical process institutionalized throughout the life of the Government: – the Party leadership should elicit political and expert advice and make recommendations to the Council of Ministers; – the Council of Ministers should instruct the Bureaucracy to prepare legislation accordingly for Parliament; – the Council of Ministers should monitor implementation of successful legislation via correct data and intelligence, and report back to the Party leadership; – the Party leadership should assess the political impact of the legislation, and re-advise the Council of Ministers accordingly. The ultimate goal is to enable the Party leadership to call and win the next Lok Sabha election within the next 60 months. That is the sole practical criterion of success. All short-term and medium-term plans and actions of the Party and Ministers have to dovetail one into the other from Day One for the achievement of this ultimate goal.

Preparing Ministers for the Job

Precious time can be lost preparing names of the Council of Ministers over days or weeks of speculation in the press and rivalry in the Party. A general pool from which the Council of Ministers is likely to be selected must be ready well before the victory at the polls is announced. The Council of Ministers should be named definitively within 24-48 hours of the Congress being asked to form the next Government. This will be the first signal to the world of the restoration of a strong, clear-headed Government of India. This will be celebration enough of the Congress’s victory. There is too much work to be done for there to be any tamasha. The Party leadership should formulate from now an initial 90-day plan to be put into action from Day One. This plan should be ready a week before Day One at the latest. The goal should be that when each Minister turns up at his/her Ministry for the first time, he/she must already know or have been advised or instructed by the Party leadership (a) what the specific job is in that Ministry in the next 90 days (b) where the Party leadership want that Minister to take that Ministry; (c) the specific steps the Minister must take within the first few days; (d) the general reforms which the Party leadership expects to see from that Ministry within 90 days. The Minister must be prepared to take charge from Day One of the superb, senior bureaucrats waiting to welcome him/her at the Ministry. If a Minister is not capable of taking charge of his/her bureaucrats then the latter will be forced to take charge of him/her. The Minister will never regain the momentum. Expert advice will reach such a Minister, if at all, only through bureaucrats rather than through the political process. The Party can almost write off the policies entrusted to such a Minister, there will be weak political monitoring of success, and alienation and disaffection in the Party as it feels sidelined by the Bureaucracy. The democratic mandate would have been stymied by lack of proper ministerial leadership. India’s senior bureaucracy is the best in the world without exception. The Congress Party, for all its faults, is one of the great political parties of the world. One of the arts of Indian Government today is to find the way to use all the talents of the bureaucracy and to win the political elections by maintaining Party morale, involvement and feedback.

Prime Minister and his Council of Ministers

It may be assumed as a fact that Rajiv Gandhi will face no challenge to his leadership from within his own Council of Ministers. Therefore, he can be confident in his leadership by both encouraging individual ministerial competence and monitoring their individual performance. He would be well-advised to explain at the outset to the Council of Ministers their common goals over the entire period of the expected life of the Government, and the planned method of achieving these goals. As basic rules of thumb, he would be well-advised to indicate boldly to his Council at the outset – that no Minister would face sudden dismissal or demotion during the life of the Government; – that such-and-such are the standards of ministerial performance he expects; – that the Prime Minister feels himself primus inter pares or first among equals, and chooses to lead them only so long as he has their collective confidence; – that every Minister has free access to him whenever the purpose is to enable Government to implement its mandate; – that he encourages free and open discussion within the Council; – that teamwork demands total confidentiality of these discussions, and total loyalty to the mandate of the Government for the entire life of the Government; – that he would accept without penalty the resignation of any Minister unable to abide by such principles or the decisions of the Council. These principles would set out some of the rules of the game of cabinet government in a clear fashion. One of the arts of Indian Government today is to find the way to let individual ministers grow and develop at their jobs without either feeling so intimidated by the Prime Minister as to be paralysed by fear, or feeling so ambitious that they want the Prime Minister’s job for themselves. If a Minister wants the Prime Minister’s job, he/she can ask for it in a proper Party forum at an appropriate time — not while they are part of this Prime Minister’s Council of Ministers. The responsible procedure for the Minister who is in total disagreement with his/her Prime Minister is to resign quietly without fanfare or publicity. If he/she wants to criticise the Government he/she should have the opportunity to do so at a closed Party forum — not in the Press or to benefit the Opposition. The Prime Minister can even state such a policy to his Council of the manner in which he expects disagreement with him can be responsibly expressed. The spectre of extreme irresponsible Cabinet behaviour of V. P. Singh and friends in the 1987-1989 period should always be before our mind. If such a model of cabinet government is considered the right one for the Centre then guidelines of this sort should go from the Party Working Committee to all appropriate Congress Committees in the States.

The Party, the Bureaucracy and Expert Advice

As a general rule, recommendations for political action should come to the Prime Minister and Council of Ministers from the Party not from the Bureaucracy. Our bureaucracy unlike others in the world is of very high quality. But like others it is inherently conservative, slow and status-quo-preserving. The Party on the other hand is or should be made to be inherently radical, fast-moving and status-quo reforming. Expert advice should generally enter the process at two different stages. First the Party should, in view of its political interests, solicit good quality expert advice from a wide spectrum of scholars, journalists, observers, public figures and the man on the street. On this basis it should make its recommendations for reform of the status-quo as radically as possible to the Government. The Government should then solicit a second round of expert advice via the Bureaucracy. This will be expected to be conservative and resisting change, partly due to normal aversion to risk and partly due to protect vested interests. In general, conservatives in this context are those whose interests are negatively affected by a change in a positive direction for the country as a whole, while radicals in this context are those desiring to bring about such change. If a radical proposal is accepted prematurely without proper preparation of expectations or formulation of a feasible deal, then it will fail due to conservative opposition and momentum will be lost. If conservative opposition stymies every proposal, there will be no change and the objective of winning the next election will fail to be achieved. One of the arts of Indian Government today is to find the right middle ground between radical proposals of change and expected conservative resistance. In this connection, part of the Party’s plan of action for Day One should be to prepare its opinions from now about the names and availability of possible expert personnel on various subjects, and the sources of correct intelligence and key data indicators for purposes of monitoring implementation.

New Delhi March 25 1991″.