Constitution-framers wanted these three wings to function independently, with clearly defined separation of powers.
Sixty-nine years is a long enough time to take a step back and assess whether a plan has worked or not. Today, 69 years after the Constituent Assembly adopted the Constitution on 26 November 1949, it is time that we, the people of India, make an impartial assessment of what the framers of India’s Constitution achieved.
More importantly, it is time to also ask if the three pillars – legislature, executive and judiciary – under the Constitution have held their own, worked as B.R. Ambedkar and the other wise men and women of the Constituent Assembly would have wanted them to. They wanted them to work cohesively, but they also wanted each of these three wings to function independently, with clearly defined separation of powers.
In making a fair assessment, how can we forget the words of a key minority member of the Constituent Assembly – Professor K.T. Shah – on why separation of powers was at the heart of upholding the rule of law, and why any “contact” or collusion between the three organs would have a corrupting influence, leading to chaos? Shah was all for rigid separation of powers, even if it meant having a mix of the presidential and parliamentary system of government.
Ambedkar was in agreement with Shah on the need for strict separation of judiciary from the executive.
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The most important, although not the most powerful, wing under the Constitution has unfortunately degenerated into an arena where politicians work more to safeguard the interests of their parties than for those who elect them. Debate, the oxygen of any functioning democratic institution, is something that we seldom witness in our Parliament and the state legislatures. Instead, we have monologues guided mostly by the party and, sometimes, personal line.
Lawmaking has taken a back seat and MPs don’t show much interest in knowing how a law would affect us.
Our parliamentary standing committees also work on party lines, with their reports seldom taken seriously even by the department attached to them. The important issue of conflict of interest – MPs with financial interests often continue to remain members of standing committees whose reports can have a bearing on their business – is not even debated now. We seem to have simply given up.
Sights of our unruly MPs and MLAs having a go at each other, using mikes, chairs and slippers, don’t make for a pretty picture. There have been instances where MPs and ministers have come in the morning, signed the register to mark their presence and then vanished from Parliament.
Even the treasury benches are often empty. What does it say about the functioning of our legislature when the presiding officer has to adjourn the house due to lack of quorum?
The criticism of the judiciary that it is often treading into the domain of the legislature and the executive is well-founded. But the reason for this unfettered and unchallenged overreach is that our legislature is mostly not doing what it is supposed to do – make laws and remove defects from the laws already in place.
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The job of the executive was to ensure proper implementation of the laws passed by the legislature and also govern. However, with the executive now looking more like an extension of the dysfunctional legislature than a separate wing, the edifice is crumbling.
The famed steel frame – as Sardar Patel called the Indian Administrative Service (IAS) – is now more structure that is falling apart.
Bureaucrats, who were supposed to uphold the rule of the law and keep the politicians in check, have now joined hands with them, refusing to stand up to the questionable demands of their political masters.
In my view, the police have gone rogue on several occasions, the Income Tax department is seen as one of the most corrupt departments, the so-called independent investigating agencies like the CBI and ED are happy being hand-maidens of whichever party is in power. The lure of post-retirement jobs often drives the in-the-job decisions of our bureaucrats.
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Independent institutions like the Election Commission, the Comptroller and Auditor General of India (CAG) and Central Information Commission seem to have become extensions of the government, or should one say the party in power.
Such is the deterioration that almost every important decision of the EC is now viewed with suspicion and, often, rightly so.
This was the pillar that was supposed to be the strongest. But what we instead have are judges, often trying to self-promote through their spoken words than written judgments, or coming under the stranglehold of the government, or trying to take over the role not assigned to them under the Constitution.
Almost 12 years after it delivered a slew of guidelines to improve the functioning of the police system, the Supreme Court hasn’t bothered to ensure implementation of several of those guidelines.
Our judges seem to have all the time in the world to weigh in on the issues that are best left to either the legislature or the executive, but not for upholding the rights of the citizens.
An example: When CBI director Alok Verma approached the Supreme Court, all he wanted was that the court should decide the legality of the Narendra Modi government’s decision to withdraw all powers from him. Instead, the court has done everything but adjudicate on this limited point.
When it comes to corruption within the judiciary, we are witnessing a lack of transparency in its functioning and a growing tendency of the courts to function like a secret society.
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If bureaucrats have let themselves and the citizens down in their clamour for post-retirement jobs, our judges seem to be catching up with the practice too. In fact, this has brought them closer to the executive. And now, we even have judges who are too keen to show their closeness to the government. This amounts to a collaboration rather than healthy confrontation.
Our three wings are injured, but not beyond recovery. All that is required is that the people manning these three institutions read, at least once, the Constitution and the debates of the Constituent Assembly to assess where they or their predecessors have gone wrong.
One would not make a great fuss over the letter of the Constitution. What it calls for is decency and fair play in public life. The Preamble, for those more intellectually inclined, is good enough to serve as the Ten Commandments. Nothing more dispiriting than clever lawyers defending the indefensible when the Constitution is mauled and mangled.
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