Author: Sankalp Pissay
Disclaimer: This article is a result of the author’s personal reflections, and does not reflect this blog’s position on any political, legal or social issue, whether sub judice or not.
Molotov Cocktail (n) – a bottle filled with petrol or other liquid fuel, with a piece of cloth in its top, that is set on fire and thrown. (Cambridge Dictionary)
The Factual Background
It is impossible to escape politics nowadays, and as much as one may wish, it is equally impossible to escape the hyperbolic and deranged rhetoric pouring in from both sides (or all sides, considering Indian politics has never been bipolar) of the political aisle. Those who sympathize with the current Central Government accuse the opposition of being anti-national and in cahoots with videshi taakatein (Foreign Powers), and those who oppose the government claim it is authoritarian and anti-democratic. While it is beyond obvious that opposing the ruling dispensation is, on its own, never tantamount to being against the nation itself, it is beyond the scope of this article, and frankly this blog, to even attempt to examine the validity of these political accusations levelled against the opposition by the ruling party.
For present purposes, the claims of the Modi government being authoritarian are of interest to me, because Mr. Modi has never enjoyed any more power than what his immediate predecessors enjoyed, and formally possesses much less power than what Mrs. Indira Gandhi did during the mid-1970s. The only difference, however, is that the BJP enjoys a full majority (winning over 300 seats out of 543 in 2019) in the lower house of the Parliament, a position which no Prime Minister has been in since Mr. Rajiv Gandhi swept the polls with well over 400 seats in the 1984 general elections.
This means that the BJP does not need to reach out to any other party to gain support for its bills in the Lok Sabha, and because the Congress MPs frequently choose to walk out of proceedings in the Rajya Sabha, the government does not find the second numerical hurdle difficult to cross either, what with reliable allies like the AIADMK. This government enjoys a kind of stability which only those headed by a member of the Nehru-Gandhi dynasty have enjoyed in the past.
Compare it with all the Governments which have come to power since 1989. The Janata Dal government left as soon as it came, and in the one and a half years it was in power for, it saw two Prime Ministers (with the second, Mr. Chandrashekhar, leading a breakaway faction which consisted of less than 70 MPs, far shorter than the majority mark of 272). Prime Minister P.V. Narsimha Rao’s government constantly had to fend off attacks, and barely survived the 1993 no-confidence motion (which was not even the only one he faced). Between 1996-1999, there were three general elections, and three Prime Ministers.
With the dawn of coalition politics, formal alliances like the NDA and the UPA managed to last for the entire duration of their terms, but the parties which led these groups, the BJP and the Congress respectively, never achieved a majority on their own. Consequently, they were always constrained by the fear that they could have been thrown out of power had their partners chosen to abandon them.
What distinguishes these governments from the current one is this factor of numerical strength. This leads one to conclude that most of the criticisms which this government faces, are a result of a far simpler and more benign truth: that this government can act with great facility because it enjoys an absolute majority in the Lok Sabha, and that there are no multiple power centres in this government, which is led by a once-in-a-generation, larger-than-life figure such as Narendra Modi. Whenever the ruling party lacks a majority in the Lok Sabha, and the government lacks a singular power centre, political instability is the rule. In fact, the Janata Party’s numbers after the 1977 elections closely resembled the BJP’s 2019 win, but it nonetheless collapsed in 1979 because it was ultimately an amalgamation of numerous parties led by many charismatic and powerful leaders.
When it comes to the accusations of dictatorship, however, Narendra Modi has eminent company. Jawaharlal Nehru was frequently accused of authoritarianism by his critics for pioneering the first amendment to the Indian Constitution, which significantly curbed freedom of speech, property rights, and the rights to equality and non-discrimination of Indian citizens. Indira Gandhi faced similar criticisms; except she chose to prove her critics right by imposing a state of emergency in 1975. The only exception to this rule has been Rajiv Gandhi, but this could probably be because his government left a trail of failures and blunders, and it suffered a loss of nearly 220 seats in the 1989 general elections, the largest ever in terms of raw seat share.
But the main question I am trying to get at is this – why has India been swinging from ‘authoritarian’ governments to ‘unstable’ ones? The central government, which has the residuary power to legislate on matters which have not expressly been allocated to the states (Article 246 of the Constitution), and which can legislate out of existence any state (just ask Jammu & Kashmir), has always been much more powerful than the state governments. But this does not adequately explain the wild swings which I have described above. Here, I will attempt to argue that this is a result of the mixing of the legislative and the executive branches of government, thereby impacting an efficient Separation of Powers, which many consider an essential bulwark against authoritarianism.
The Constitutional Scheme
By virtue of Article 53, the executive power (defined in Art. 73) and the supreme command of the Defence Forces of the Union (which is to be regulated by law) have been vested in the President. Art. 59 states that the President shall not be a member of the Parliament or any State Legislature, and while the Parliament can determine the President’s emoluments, allowances, and privileges, it cannot diminish such emoluments and allowances during his term of office. Art. 61 provides for the procedure for impeachment of a President.
Thus, the President is separated from the Parliament, and the executive power is vested in him. The office is also to be occupied by a single individual. The Parliament can only impeach him after both the houses pass a resolution to that effect with a two-thirds vote, and his emoluments and allowances are also protected during his term in office. This ensures that the President is independent of the Parliament but is also checked and balanced by the latter. These principles have been discussed at length and endorsed in the Federalist Papers (Nos. 70 and 73 specifically), which were written between 1787-1788 by Alexander Hamilton, James Madison, and John Jay, to promote the ratification of the Constitution of the United States.
However, Arts. 74 and 75 complicate things. The President is to act according to the aid and advice of the Council of Ministers, and while he can send back such advice for reconsideration, he is mandated to act as per the advice tendered after such reconsideration. While the ministers serve at the President’s pleasure, they are collectively responsible to the Lok Sabha, and each minister is required to become a Member of Parliament within six months of taking office, failing which, they shall cease to be a Minister. As per Rule 198 of the Rules of Procedure and Conduct of Business of Lok Sabha, 2019, a motion of no-confidence can be brought against the Council of Ministers. They must enjoy a majority of 50% in the Lok Sabha, or else the government collapses. In 1999, the second Vajpayee Government was defeated by a single vote in a no-confidence motion decided by a tally of 269-270.
On the other hand, if a single party manages to win a majority in the general elections, it is next to impossible to defeat the government in a no-confidence motion after the 52nd amendment, which inserted the Tenth Schedule to the Constitution. The schedule contains India’s anti-defection law and makes it a ground for disqualification if an MP disobeys the directives of the party leadership on a vote. Thus, the 2018 no-confidence motion against the Modi government was easily defeated.
What this means for Separation of Powers
For a Constitution to survive and foster rule of law under it, the structure of the government is its destiny. As many famous jurists have pointed out, countries like North Korea have excellent and far-reaching Bills of Rights but continue to be totalitarian regimes because they concentrate all their political power in one body or person, rendering any restrictions on such governments mere paper barriers. In India, Separation of Powers only means the separation of the judicial branch from the executive (which itself has been improperly done and erodes day by day), and we have never attempted to free the executive from legislative control.
Moreover, we have a plural executive in our country, which presides over officers who are selected by a separate set of constitutional bodies, the Public Service Commissions. The Constitution itself provides for their terms of service and provisions relating to their dismissal in Arts. 310 and 311. This means that most ministerial staff and bureaucrats cannot be fired after general elections and mostly continue to serve without any political accountability. While many celebrate this executive aristocracy, I believe such a system wherein a large of segment of the executive which is not appointed by elected officials and is thus immune to political trends, does not comport with democratic principles. Additionally, this system does not give the Indian voters any meaningful choice to separate their preferences for legislators and the members of the higher executive.
Many jurists have remarked upon the incompatibility between Indian realities and the Westminster form of Parliamentary democracy. In 1948, MC Mahajan, who later became the Chief Justice of India in 1954, stated that the Draft Constitution was a slavish copy of the Government of India Act, 1935, and would only foster disunity in the nation.[1] H.M. Seervai, in the preface to the 4th edition of his magnum opus, Constitutional Law of India, remarks upon the incompatibility of the Westminster model of Cabinet Government (Council of Ministers) with a nation as diverse as India (p. ix).
It has long been known that it is the law-making body, left unchecked, which poses the greatest threat to a free society. In Federalist No. 48, Madison noted that, “The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.” Again, in Federalist No. 51, he states that, “In a republican government, the legislative authority necessarily predominates.” The remedy the drafters of the US Constitution devised was to divide the legislature into two houses, with varying compositions and (at least initially) a different mode of election.
The executive, they believed, was the weaker branch. It is not as close to the electorate as the legislature is. The legislature had also acquired the power of the purse. Hence, they fortified the executive branch by vesting all its attendant powers in one individual: The President, and by separating the executive offices from the legislature. The President has a different mode of election from the legislature and can only be removed from office during his term if the Senate, by a two-thirds majority, convicts him after the House of Representatives impeaches him by a simple majority.
Additionally, as Hamilton remarks in Federalist No. 70, “Energy in the Executive is a leading character in the definition of good government… A feeble executive implies a feeble execution of the government. A feeble execution is but another phrase for a bad execution; and a government ill-executed, whatever it may be in theory, must be, in practice, a bad government.” In the same paper, Hamilton notes, “The ingredients which constitute energy in the Executive are, first, unity; secondly, duration; thirdly, an adequate provision for its support; fourthly, competent powers.”
It is evident that the drafters of our Constitution focused a lot on the ends of government (reflected in Fundamental rights and the Directive Principles of State Policy). However, to administer the same, they constituted too many bodies (such as the Public Service Commissions, Comptroller and Auditor General, the Attorney General, the Election Commissions), in such a way that they are functionally not accountable to the Cabinet and the President, thereby seriously damaging unity in the execution of those ends. Compare this with the view laid down by the U.S. Supreme Court last year in Seila Law v. CPFB, where the Court struck down a provision which restricted the President’s power to fire the head of an executive body to cases of inefficiency, neglect of duty, or malfeasance in office. Chief Justice Roberts’ opinion confirmed the President’s power to fire executive officials at will.
While the executive bodies in India collectively have adequate provisions for their support and have competent powers, they lack unity, and the de facto head of government, the Cabinet led by the Prime Minister, has an uncertain duration in office. It is answerable to the Parliament, and in a Westminster model, the executive is the weakest when the electorate delivers a fractured mandate. Additionally, the officials who are subordinate to the Cabinet enjoy far more stability in office than the Cabinet itself, thereby leading to an anomalous situation where the master is weaker than the servants it commands. But when the government enjoys a majority in the Lok Sabha, it faces little hurdles in overruling any power under the Constitution by a simple act of legislation. Various bodies have attempted to check such brutish majorities, especially the Supreme Court, but most of those checks are innovations which do not find any support in the text of the Constitution (for example, the Basic Structure Doctrine, which restricts the Parliament’s power to amend the Constitution, finds no basis in the text of the Constitution). Additionally, when faced with charismatic and popular Prime Ministers, the Indian judiciary has always chosen the path of least resistance and is itself riddled with many problems which cannot be adequately discussed here.
Conclusion
Prime Minister Modi has repeatedly called for holding simultaneous elections to the Parliament and the State Legislatures. He says this will help bring greater stability, economy, and efficiency to the electoral process. This proposal has been deemed anti-democratic, for various reasons. However, this proposal, if implemented, will fail anyway, since the Central and State Cabinets may lose their majorities midway through their terms, or in cases of fractured mandates, no single group of parties may be able to cobble together a stable coalition. Sometimes, the ruling party, which lacks a majority in the Parliament, may choose to hold early elections hoping to increase its numbers. The general elections of 1971, 1980, 1991, 1998 and 1999 were all conducted for such reasons. If one wants fewer elections and stable governments, the root cause of these ailments must be addressed.
In my opinion, the Westminster system is why we see the wild swings in government which have been described in the first part of this article. There is a serious need to examine this model of government and why we continue to adhere to it uncritically despite so much evidence pointing to its inefficacy in India. We also need to examine the viability of a unitary executive model, sufficiently checked but ultimately independent from other governmental organs. A lot more can be said about why the Westminster model does not serve us well, and it does us no good if we continue with this experiment when it is clear it is not proving to be a success.
[1] VD Mahajan, Chief Justice Mehr Chand Mahajan (first published 1969, EBC 2014) 34.
About The Law 