By Narendra Luther
Separation of Powers
This separation of powers is a distinctive feature of democracies all over the world. In practice however they are not separated in watertight compartments, particularly in the parliamentary form of governments. Under that system the executive is a part of the legislature. All ministers (executive) have to be members of the legislature.
Similarly, while adjudicating, the judiciary sometimes ends up in virtually legislating. Any act of the executive or legislature and any omission of the executive can be challenged in a High Court or the Supreme Court. Every decision of the Supreme Court has the force of law. The High Courts or the Supreme Courts can be moved through a number of writs or through PIL (Public Interest Litigation). Some times they take action suo moto. Thus the higher judiciary also sometimes ‘legislates’. On occasions even a piece of legislation passed by the legislature is declared ultra vires the Constitution. It therefore becomes invalid and has either to be scrapped or amended suitably.
‘Sins’ of the Executive
Of all the three wings of the State, the executive is most sprawling. It has an army of people both under the Union and the States and every new legilation gives birth to more member of the executive. For example recently the Union government has created a Disaster Management Board to deal with national calamities on a systematic basis. This, in turn, will necessitate the creation of many jobs to anticipate disasters, to determine the quantum and the type of aid and succour to the victims, and to monitor the progress of relief and rehabilitation. Similarly the promulgation of the Right to Information Act has already resulted in the appointment of Information Commissioners at the Centre and in every state. More subordinate staff will be required to ensure the implementation of the provision of the Act.
As a polity, India is said to suffer from over-legislation but under- implementation. There are scores of enactments, which remain dead letter because no one cares to implement them. There are many cases of dereliction of duties enjoined upon the executive functionaries by the Constitution, or under various statutes.
The executive authorities, which function under the supervision and control of the elected authorities some times, do not take action because it might not be palatable to a section of the electorate. Sometimes offenders who need to be booked under law are not touched because of the influence which they wield. There are innumerable instances of members of Parliament and State legislatures who have criminal cases pending against them. But they roam about freely because the authorities are afraid of touching them. There are instances when the Police do not register a complaint because the accused is an important person. The common man in such cases has no alternative but to approach courts. There are cases in which the investigation taken up by the police is deliberately slipshod. The whole case which depends upon that therefore fails and the accused goes scot-free. There are two types of delinquencies committed by the executive – those of omission, and those of commission. Both can hurt the citizen equally.
Calls for CBI
Since the police investigation does not enjoy the confidence of the people, there are frequent demands from different section of the public – and even by the members of legislature for investigation to be entrusted to CBI. That organization has also been called upon to investigate actions of the police itself as in the case of the Mumbai police in the Telgi scam. The frequency with which CBI has been brought into cases makes one wonder how it can cope with such increasing load of work. However, it is one organization which still enjoys a large measure of public confidence though allegations against its partisan role or lukewarm action have been made sometime by the political leaders.
Similarly the courts have had to step in matters that should normally have been disposed of by the executive authorities. From such simple cases as admission to educational institutions, fees to be charged by private colleges, traffic management, and control of noise pollution – to mention only a fraction of cases – the courts had to step in to enforce rules and regulations and to ensure fair play. Recently the Supreme Court had to order the Executive authorities to evict ministers, ex MPs and others from their official accommodation to which they have lost their which they have lost their ex-officio entitlement They had to order the arrest of some of the legislators who had cases pending against them and against whom no action was being taken by the executive authorities. Again, recently the Supreme Court ordered the removal of the chief secretary of Uttar Pradesh whose appointment to that post was a disgusting case of impropriety and open favouritism. The courts have a potent weapon in their hands – the contempt of court. If their orders are not obeyed, they can hold the delinquent authorities for contempt and punish them with fine or imprisonment. In some cases they have done that. One wonders what would have been the situation if we did not have an independent judiciary resorting to what has been called ‘judicial activism’. Some of the instances in which the judiciary has exercised its authority to benefit itself have been criticized, but on the whole they have served to ensure justice and to provide relief to the common man. It has virtually come to supplant the executive.
The Minimum Three
The ready resort to CBI, and the courts makes one wonder whether we need any executive at all. CBI can replace the Police and the judiciary can do so with the executive. In other words, we could do with just two institutins –CBI and the judiciary.
But wait a minute. We still need some organization to defend us against external aggression. So two will do for our internal administration – and our soldiery will guard our frontiers. Also so many times the armed forces have had to come to help the civil authorities to cope with disasters both natural and man-made.
With these three institutions, we will be OK. That is, till we find that there is no ideal arrangement.