Separation of Powers between Organs of Democracy GS 2 UPSC

Separation of Powers between Organs of Democracy

Parliamentary Sovereignty vs Executive Tyranny

How does Parliament Control Executive?

• Confidence of Parliament: The executive itself rests on the confidence of the legislature sans which it would collapse in parliamentary form of government
  • In the event of a no-confidence motion being passed, the council of ministers including the prime ministers must resign from their office
• Questioning: The executive is subjected to questioning on the floor of the house with regard to government policies, spending and decisions for which they remain answerable to the legislature.
  • Questions are asked during zero hours, question hour and parliament can entertain motions to discuss actions of minister or any urgent matter which needs the attention of the house

• Funding: Not a single paisa can be appropriated from the consolidated fund of India without the passing of an appropriation law by the Parliament. The executive’s functioning and implementation of decisions are hence liable to the financial approval of the parliament
• Auditing or Reporting: Several parliamentary committees perform auditing of government expenditure and aim to rationalise government expenditure. These committees have presence of opposition party members to ensure independence in its functioning.
  • Public Accounts Committee: It consists of 15 members from Lok Sabha and 7 members from Rajya Sabha, a minister cannot be its member.

Executive Gaining Control over Parliament

                The independent secretariat of the parliament which performs the functions of admitting questions, preparing reports of committees and other functions involving legislative scrutiny of the executive generally is free from the ruling party members. Over the years, its independence has been affected by the infiltration of the secretariat with majority party members eventually weakening legislative control over executive.

                The summoning of the sessions of parliament is the prerogative of the President under the advice of the executive. Delay in sessions or reduced sessions of Parliament tilts the balance of power in executive’s favour as it is less susceptible to legislature control. Such a situation is not ideal in a democracy that seeks to be stabilised by adequate checks and balances.

Ordinance Promulgation

Introduction: Article 123 and 213 confers the power to promulgate an ordinance to president and governors respectively.

                The rampant re-promulgation of ordinances by Union and state executives has raised the question of the damage of ordinance powers to the Separation of powers doctrine. Executives have arbitrarily misused this power to circumvent legislatures effectively hijacking the will of the people.

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Why Ordinance?

                Our founding fathers conceived ordinance as an emergency tool to deal with emergent demands of the executive when the legislature is not in session. In such situations, the President could promulgate an ordinance subject to later ratification of the Parliament.

Limitations of Ordinance

1. Legislature not in session
2. Cannot be used for an amendment
3. Must be passed by legislature after reconvening within 6 weeks.
4. Parliament can overturn ordinance by passing resolutions
5. Satisfaction of President that there is need for immediate action (Cooper Case)

Why Abuse of Ordinances?

1. The reluctance of executive to face legislature
2. Attempt to circumvent houses due to lack of majority
3. Repeated and wilful disruption by opposition parties

Consequences of Ordinance Abuse

1. Undermines Separation of Powers: The abuse of ordinance making power threatens the sovereignty of parliament and state legislatures that are constitutionally mandated with law-making powers. (Krishna Kumar Singh)
2. Reduces Accountability of executive: Frequent ordinances are a gateway for executive tyranny and colourable legislation. It circumvents arguments and deliberation that are core values of parliamentary democracy
3. Poor legislations: The circumvention of legislature in law making reduces its efficacy and aptness. Ordinances may reflect the idea of ruling party alone, it thus dilutes representativeness and fractures the will of the people (D. C. Wadhwa)
4. Omissions and Commissions: The omissions and commissions done under an ordinance later repealed continue to have legal footing. Thus, ordinances can be manipulated to be a temporary instrument of abuse. (Krishna Kumar Singh: 2^nd point)
5. Threatens federal Spirit: Frequent ordinances circumvent the council of states. Thus, the opinion of state governments is not sought in law formulation that affects them. This undermines the federal spirit of constitution

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Read Full GS Notes

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Judgements of Supreme Court

The subsequent re-promulgations of these ordinances have been antithetical to the spirit of the Constitution as observed by the Supreme Court in its various judgement.

• Cooper Case: The Supreme Court opined that the President’s satisfaction in promulgating an ordinance can be justiciable. Thus, a judicial check was placed to evaluate the need for an ordinance to safeguard the separation of powers doctrine
• C. Wadhwa Case: Here, the court took up successive ordinance re-promulgations. Such ordinances that are passed repeatedly without any text change aiming to subvert the legislative process can be struck down as violative of the constitution, the court held. It was held that ordinance making power is not one of parallel legislation
• Krishna Kumar Singh vs State of Bihar:
  • Failure to place ordinance before legislature is abuse of power and fraud on the constitution
  • Here, the court looked into the need for undoing of acts sourced on the ordinance. The court held that ordinance is not a temporary legislation as it is not a creature of the legislature. It held that an independent evaluation is needed to assess public interest before undoing of acts

Conclusion

                The executive shall show self-restraint and use ordinance power only in the spirit of the constitution. As an emergency instrument, ordinance is utilitarian, yet its existence cannot be manipulated to subvert separation of powers, parliamentary sovereignty and democratic will of the people.

Office of Profit

                The term despite being used in a number of places is not defined in the constitution. It is used to denote executive appointments. Thus, it has executive characteristic meaning members of other organs of governance shall keep away from them to ensure the independence of organs and separation of powers.

                Articles 102 and 191 provide for disqualification of MPs and MLAs if they hold office of profit. Exemption is provided for ministers or if such a law exists.     

Article 103 states that if a question arises on the said disqualification, it shall be referred to the President’s decision who shall consult the ECI and act accordingly.

                In the Maulana Abdul Shakur vs Rikhab Chand (1958) case, the SC had defined the concept of office of profit under the government.

1. Government’s power to appoint a person to an office
2. To keep him or revoke his appointment at the discretion
3. Payment from government revenues (Payment from other sources were not to be a decisive factor)

In the Pradyut Bardoli vs Swapan Roy (2001), the SC added certain other parameters to the test:

1. Functions of the appointed individual and whether they were performed for the government
2. Extend of government control over them and interference with his functioning as an MLA
3. Holding two offices causing a conflict of interest

In Jaya Bachchan vs Union of India, SC held that office of profit refers to the potential of pecuniary gain. Hence, the receipt of profit is not required but the potential of it is sufficient to classify an office as for profit.

Parliamentary Secretaries

Functions

• Assistance to Ministers: A Parliamentary secretary is of the rank of minister of state and assists ministers with his or her duties
• Legislative Expertise: Parliamentary secretaries can provide for research to fine tune legislations
• Set Agenda: Parliamentary secretaries can assist in functioning of parliament, setting agendas, allotting time to ensure smooth transaction of business in the parliament

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Issues with the Post

• Office of Profit: Several high court verdicts have cited that the post has an office of profit characteristic. The minister of state function for an MLA or MP thus undermines his role as legislator and check on executive. It is thus antithetical to Separation of Powers doctrine. As per 102 and 191, they are thus liable to be disqualified from MP or MLA position
• Number of Ministers: The 91^st constitutional amendment has fixed the number of ministers at 15% of house strength. The appointment of parliamentary secretary thus outnumbers the ceiling making it unconstitutional and void.
• Burden on Exchequer: The utility of the office has been called into question given the salary the secretaries receive without contributing at corresponding levels
• Political Nature of appointments scant utility
• Threat to Public Interest: Unlike ministers, they are not bound by oath of secrecy (Article 239AA(4)) but may have access to information that threaten public interest, breed corruption or threaten national security

Counter Argument: Parliamentary secretary need not be considered a minister as they are not appointed by the President or Governor or administered oath by either.

2^nd ARC Recommendations

Define the Office of Profit:

Not Office of Profit: All offices in a purely advisory role where experience, insights and expertise of legislator would be inputs in governmental policy shall not be treated as offices of profit.

Office of Profit: Directly deciding policy, authorizing or approving expenditure can be considered as office of profit

How Judiciary Controls Parliament and Executive?

• Judicial Review: Judiciary has the power to review laws passed by the parliament. It can declare them as null and void in case it is found to be unconstitutional. The power of judicial review evolves out of Article 13 of the Indian constitution but is not explicitly mentioned in the constitution
  • NJAC was struck down by the court opining that it affects independence of judiciary
• Issuing Writs: To give effect to fundamental rights of citizens, the judiciary has the power to issue writs against the state. Any citizen aggrieved due to loss of his fundamental right can approach the judiciary as guaranteed under Article 32 of the Indian constitution
• Federal Court: The SC has original jurisdiction regarding federal cases involving centre government and states. It is hence vested with the power to interpret the federal nature of the constitution and ensure that its spirit is not violated by actions of centre or states.
  • SC recently opined that the LG of Delhi cannot unilaterally scuttle and obstruct governance and administration by elected government that hinders realisation of people’s mandate.
• Socio-Economic Justice: The Judiciary in case of inaction by executive can take the initiative and ask the executive to act immediately in cases where urgent socio-economic welfare is required
• • PUCL vs Union of India- The SC asked the executive to implement a mid-day meal scheme that has brought about nutritional security and greater retention rate among children of the country
• Environmental Justice: The court has been actively involved in coercing state into action in an effort to protect the environment from a decline in quality.
  • SC recently banned pet coke and other fuels with lower thermal efficiency. SC in the Mehta vs Union of India case shut down several industries in the Ganga basin owing to increased pollution of River Ganga.
• Check on Executive: Despotic and selfish actions of those vested with power are reprimanded by the judiciary with punishments as per law. This ensures members of executive remain accountable for their actions not only in the court of people but also in the court of law.
  • CWG Scam

How the executive controls Judiciary?

• Appointment of Judges: The judges of SC and HC are appointed by the president in consultation with the Central government
  • Recently, the centre put back a recommendation of the Collegium for elevation of Justice Joseph citing equity of regional representation

How the Parliament controls the Judiciary?

• Impeachment: The SC and HC judges can be removed by a resolution passed by both houses of parliament with special majority.
• Procedure for appointment and promotion of judges: The parliament may pass legislations regarding changes in procedure for appointment and promotion of judges.
  • NJAC bill that aimed to establish National Judicial appointment Commission, a dedicated body for judicial appointments.

Judicial Activism

 When a judge’s ruling is based on personal or political beliefs rather than by existing law. It is generally seen when judiciary oversteps its domain taking over the purview of Legislature and Executive.

Positives

• Pro-active Roleà Smooth Functioning: Judiciary actively involves in smooth functioning of democracy and ensures that reforms along such lines are initiated even in the absence of an efficient executive or legislative body to implement the same

Eg: NEET for admission to medical courses in India to curb regional disparity in accessibility of educational institutions and to reduce commercialisation of medical education

• Trust in Democracy: Enhances the trust of people in democracy as well as judiciary in times of wavering trust of executive and parliament or state legislatures
• Wider Review of Laws: Rather than simply looking at the existing law as per ‘procedure established by law’, judiciary seldom looks at the ‘due process of law’ and thus seeks to evaluate how just and fair law is. Such a process was first undertaken in the Maneka Gandhi case where the court questioned the fairness of the law and did not restrict itself to the letter of the law
• Supremacy of the Constitution: Aims to uphold principles and ideals of constitution makers and actively try to lay stone to implementation of directive principles of state policy

Eg: Food Security Act- Implementation of mid-day meal scheme – Government has responsibility to ensure nutritional levels and public health

Article 21’s interpretations in the Francis Coralie vs Union Territory of Delhi –SC opined that right to life did not merely constitute an animal existence but referred to a life lived with dignity. Such a life necessitates right to nutrition, shelter, clothing and other social services

• Increases accountability of other organs of the government to bridge their trust deficit with the citizens by proactive making and implementation of requisite laws
• Enabled judiciary to function independently without political interference

Eg: National Judicial Appointments Commission – A body which has the power to appoint judges to the higher judiciary, struck down as unconstitutional.

Negatives

• Antithetical to Separation of Powers: Oversteps its purview and ventures into domains exclusively established for lawmakers and executive officers. The Constitution itself has opined that the state should strive to separate the Judiciary and the Executive in DPSP
• Fractures Mandate of the People: Legislators are directly elected representatives of the people and hold the constitutional authority to make laws and implement them through executive. Hence they are effectuating people’s will and judiciary is not responsible for such an action
• Inappropriate and Ill-Thought Laws: Judicial Activism may result in-laws that are inappropriate and ill-thought which is just the personal opinion of the judge while a democratic process of lawmaking yields a law that is borne out of collective thinking
• Any constructive legislator reforms with respect to the functioning of the judiciary are vulnerable to undesirable judicial intervention

All India Judicial Services

• A proposal of introducing All India Judicial services at lower courts to change recruitment policy in courts has been rejected by several high courts
• Judicial supremacy intended as judiciary is unwilling to reform itself and accept legislative and executive actions that aim to bring a constructive change to the judicial process.
• The judiciary upholds its sovereignty in this case as well as in the case of NJAC where the government’s aim to reform the structure has been struck down by the judiciary.