How are we governed? Let’s not stop talking

Dialogues about the functions and fallibilities of India’s organs of governance need to continue.

The parliamentary debate on the Constitution of India has, on expected lines, played out as a blame game between the ruling and the Opposition camps. India needs to look beyond inconclusive, politically motivated exchanges on what the document embodies – it cannot afford to let this debate close here; the discussions need to continue, also through a continuous engagement of ideas among the key stakeholders, the citizens.

The Constituent Assembly took form in 1946. It was elected indirectly by the members of the provincial legislative assemblies that existed under British Rule, and Muslims and Sikhs received special representation as minorities. It also had the representation of the princely states. The Preamble of the Constitution reads – “We the people of India… do hereby adopt, enact and give to ourselves this Constitution.” Mahavir Tyagi’s remarks on the composition of the Constituent Assembly, during the debates, need to be noted here – “We have assumed that we are the representatives of the nation... it is the Congress Party which has given this Constitution... the whole of India has not been represented in this Constitution... it does not have the sanction of the country as a whole.”

About the functioning of the three main organs of governance, as mentioned in our Constitution, this is what Dr B R Ambedkar had to say – “...the purpose of a Constitution is not merely to create the organs of the State but to limit their authority because if no limitation was imposed upon the authority of the organs, there will be complete tyranny and complete oppression.”

Besides the limitations upon the authority of the organs, the Constitution has also provided checks and balances to ensure that no organ exceeds its authority. All the organs are, ultimately, also accountable to the people of India who have created them. But how have these organs evolved during the last 75 years?

The executive and the legislature consist of elected representatives of the people with a limited tenure. They have to go back to the people and seek their mandate for another term. They are also subjected to regular scrutiny by the parties they are affiliated with, legislative assemblies, and the media, including social media.

Their decisions are also subject to judicial scrutiny. It may be seen that these two organs of the State are subjected to adequate checks and balances and are also accountable to the people. We can say that India has, by and large, established a system of free and fair elections, and democracy has now taken firm roots in the country, despite a few aberrations like the imposition of Emergency and the dismissal of duly elected state governments for political reasons.

The other areas of concern with these organs are the large number of legislators facing criminal and corruption cases and frequent disruptions during the legislative sessions marked by unruly conduct of the members.

The independence of the judiciary is one of the most important requirements in any democratic society as it is considered the watchdog of democracy and the protector of the rights of citizens. For this reason, the Constitution provided that judges of the Supreme Court shall be appointed by the President after consultation with the judiciary (Art 124 [2]) and they could be removed only through a process of impeachment (Art 124[4]). The judiciary has the power to interpret the Constitution and to adjudicate the constitutional validity of the laws passed by the legislatures.

The question of accountability

Over the years, the judiciary, through these powers, has taken away the powers of the executive to appoint judges through a series of judgements. It created the institution of Collegium, comprising the Chief Justice of India and four senior-most judges of the Supreme Court for selecting the judges.

It also curtailed the powers of the parliament by propounding the Basic Structure doctrine of the Constitution by its 7:6 majority decision in the Kesavananda Bharati case in 1973 which held that certain fundamental features of the Constitution cannot be amended by parliament. It also held that the power of judicial review is an integral part of the basic structure of the Constitution, and cannot be taken away by parliament through constitutional amendments. The constitutional provision of impeachment of judges has also proven ineffective.

This is where discussions around checks and balances, conflict of interest, accountability, and the infallibility of judges assume importance. Former Chief Justice N V Ramana, while participating in a felicitation organised by the Association of Indian Americans in San Francisco, US, said, "...Let me make it clear. We are answerable to the Constitution and the Constitution alone." And it is the judiciary that decides what the Constitution says. Should the judiciary itself devise a mechanism through which it can address the accountability question? The ever-increasing pendency of cases and the prohibitive costs of litigation are also pressing issues that have found no solution so far.

Besides these organs of the State, political parties also play a very important role in a democracy. Looking at the way the parties have functioned in India over the decades, it is time for a debate on their significance and shortcomings as well. There is also room for extensive debates on referendums and whether the parliament can decide on them as they also represent the will of the people. Serious deliberations on these key issues will throw up valuable insights and suggestions that will go a long way in improving the functioning of our democracy.

(The writer is a retired IAS officer)