When separation of powers takes a hit
THE separation of powers among the executive, judicial and legislative branches of the government is indispensable to ensuring checks and balances, which in turn are essential for democratic governance. This is based on a fundamental principle of democracy — the state is accountable to the people and not the other way around. The people are accountable to the law of the land, administered according to the provisions and processes laid out by the Constitution.
In India, the Constitution is not a gift of the state to the people. It is “We the people”, as stated in the Preamble, who have given themselves a Constitution whose provisions bind the state.
Those who value the freedoms enshrined in the Constitution should work together to prevent the emergence of a predatory state.
In addition to the separation of powers among the three branches, in a federal state like India, there are also checks and balances for the Centre and the states. The Constitution spells out the jurisdiction of the Centre and the states with respect to various domains. The states prevent overreach in the exercise of power by the Centre and vice versa. The objective is to achieve a diffusion of power of the state in a manner which safeguards the exercise of the fundamental and inalienable rights of citizens without impairing efficient governance.
The role of independent and empowered institutions, including those that draw authority from the Constitution, such as the Election Commission, the Comptroller and Auditor General of India or the Union Public Service Commission, is another important safeguard against the arbitrary exercise of power by the state.
The political history of India since the adoption of the Constitution on January 26, 1950, has been a saga of inspiring wins for democracy, but also several setbacks.
The adoption of the principle of the Basic Structure of the Constitution is an important safeguard against the denial of fundamental rights of citizens by a predatory state. According to this principle, enshrined in the Kesavananda Bharati judgment (April 24, 1973) of the Supreme Court, there are certain fundamental features of the Constitution, such as its supremacy, the rule of law and the independence of the judiciary, which cannot be amended or abrogated by Parliament through a constitutional amendment. This principle has been attacked in recent years, but it must be upheld. Without this principle, it is conceivable that relying on a brute majority, a government could eviscerate the very foundations of Indian democracy.
There are threats to independent institutions which must be resisted. In a brilliant address to the Asiatic Society of Mumbai in December last year, eminent jurist Rohinton Fali Nariman drew attention to the danger in the passage of a law, which laid down the appointment of the Chief Election Commissioner (CEC) of India. According to a Bill passed in December 2023, the CEC would be appointed by a committee comprising the Prime Minister, a Union Cabinet minister nominated by the PM and the Leader of the Opposition (LoP). As Nariman pointed out, this provision means, in effect, that the CEC is appointed by the PM himself since the LoP will always be outvoted two to one. This would severely compromise the independence and neutrality of the CEC and undermine the credibility of the election process. The Bill has been challenged in court.
The recent conduct of several Centrally appointed governors has also undermined Centre-state relations, weakened the federal structure and encouraged political horse trading and floor-crossing. Governors have sat on Bills passed by state legislators, openly obstructed the normal functioning of state governments and indulged in blatantly partisan behaviour. This not only undermines democratically elected governments but erodes the very fabric of federalism, without which a highly diverse country cannot be managed. Justice Nariman also touched upon this unhealthy development in his address.
While there is the letter of the law which must be followed, there are also the more intangible dictates of constitutional morality and propriety. It is for a good reason that independent India opted for an apolitical bureaucracy and a judiciary which should maintain a certain distance from the other branches of government. A civil servant must be enabled to offer the best professional advice on policy matters to his political masters, which may or may not be accepted. He must then implement the policy which the political leadership may have opted for to the best of his ability. His role is not to validate a political preference. In this context, the use of post-retirement sinecures and assignments to influence bureaucratic behaviour has become pernicious. For the many positions that are usually filled by retired bureaucrats, why not have an open selection process in which applications are invited from a much larger catchment of suitable candidates, including retired bureaucrats? The selection committees could include non-government and eminent civil society representatives. This would add to the credibility and standing of persons leading various commissions, regulatory bodies and agencies.
There is a serious erosion of the apolitical character of civil servants, many of whom get identified with political masters belonging to one political party or the other. They function, not according to the law of the land and in public interest, but to advance the political agenda of a party. This blurs the separation of powers. Worse is the display of proximity of members of the judiciary to political leaders. The ‘aloofness’ that they are expected to maintain from other branches of the government is critical to retaining the trust of the public and serving as the conscience-keepers of the nation.
The acts of each branch of the government must be open to questioning by citizens, on whose behalf they are required to function. There is a tendency to evade accountability by hiding behind the need to uphold security. Freedom of expression is restricted on the grounds of preventing public disorder or citing possible hurt to the ‘sentiments’ of this or that community. This is a slippery road towards the arbitrary exercise of power. Indian democracy is a precious but fragile asset. It is incumbent on those who value the freedoms that are enshrined in the Constitution to work together to prevent the emergence of a predatory state which holds the citizen as accountable to and subordinate to the state. This is the very antithesis of democracy.
