Today's Editorial 01 August 2014

      Unelected democracy

Source: By G Ramachandra Reddy: The Statesman
The Parliament, Council of Ministers with the Prime Minister at its head, and the cabinet as the fulcrum of the Council of Ministers are together losing their steam with every unelected institution asserting itself in the Constitutional and legal power-sharing mechanism. The cabinet system of government, which evolved in Britain in the 17th century out of sheer necessity for the democratic exercise of state power, is on the decline. AG Grant, Professor at Leeds University, has observed: “No one foresaw the cabinet system; it found its place in no utopia; it has no prophet, it has no Constitutional anchor. It was the result of the practical ability of English politicians in meeting emergencies as they arose with the best expedients that they could devise.” The King must reign and not rule, yet rule was necessary. The Parliament is not a suitable body to rule; even the Roman Senate has not succeeded in keeping control over the affairs when the empire began to develop. Therefore, a cabinet system of Government arose out of sheer necessity as a body of ministers responsible to Parliament in the exercise of executive powers of the State.

Article 53 of the Constitution states that the Executive power of the “Union” should be vested in the President and shall be exercised by him either directly or through the “officers” subordinates to him in accordance with the Constitution. This Article needs to be read in conjunction with Article 74 which envisages that the Council of Ministers with the PM at the head will aid and advise the President and that Executive power is to be exercised in accordance with such advice. The word “officers” in Article 53 is significant as it did not mention “ministers”. This implies that unelected institutions such as the judiciary, Governors, Election Commission, Comptroller and Auditor General, bureaucracy, Army etc., have definitive share in the exercise of executive power as per the law and Constitution. A cursory glance at the provisions of the Criminal Procedure Code 1973 will give an idea of the enormous powers conferred on the police and the courts. Similarly, revenue, civil, fiscal laws conferred such powers on public officials. Therefore, the implicit meaning is that unelected institutions co-share State power in our representative democracy. Further, judicial activism and pronouncements have strengthened the role of unelected institutions.

Most of the selections to public services including the All-India Services are made by the Union Public Service Commission and the State Service Commissions. Only formal appointment orders are issued by the Government. In the selection of judges, the High Courts and the Supreme Court play a preponderant role. Army recruitment boards make selections for the Army. Police recruitment boards do the selection for the police. Even the selection of a DGP has to be processed by a committee of bureaucrats, followed by approval of the Union Public Service Commission / Election Commission before the government issues orders of appointment. The Governors (unelected institution) usurped the power of the Government as for example in the appointment of Lokayukta in Gujarat. The Governor often misuses powers in the appointment of Chief Ministers in States (Article 164), toeing the line of the party high command. As often as not, they misuse their power when they dismiss popularly elected governments despite a majority in the Assembly. They abuse power in reserving State bills without giving assent, thereby embarrassing the State government (Article 200). In the matter of promotion of bureaucrats and police officers, the elected institutions have less control. The Annual Confidential Reports (ACRs) are drafted by the superiors in every department and everyone is certified as outstanding by the departmental seniors. Thereby no promotions are withheld. Even in respect of transfer, the judiciary has stepped in, saying that two-year tenure for All-India Service officers is essential. A conference of Chief Ministers in 1997, meant to weed out dead wood in All India Services, was unsuccessful as every such officer was certified as “outstanding”.

The Army leadership has been reluctant to undertake anti-Maoist operations on the plea that Maoists are “our own people” despite the suggestion by the Government.  On a parity of reasoning, the Pakistan Army can stay in the barracks by saying that the Taliban and terrorists are our own men. The Westminster model of the Cabinet system of government, based on democratic traditions and conventions, lead to gradual erosion of the power of elected institutions.

The latest controversy between the elected and unelected institutions arose out of government turning down the name of Mr Gopal Subramanium as judge of the Supreme Court. Article 124 (2) states that every judge of the Supreme Court is appointed by the President after “consultation” with such judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose. But by a process of interpretation by the Supreme Court, the government became a “consultee”. A Collegium was formed in the Supreme Court and its recommendations are binding on the Government. Under Article 124(5), Parliament was given the power through law to regulate the procedure for presentation of an address (impeachment) and under clause (4), the power for investigation and proof of misbehaviour or incapacity of a judge. Under Article 138(1), the Supreme Court may be conferred with such further jurisdiction and powers with respect to any of the matters in the Union list as Parliament may by law prescribe. Under Article 139, Parliament may by law confer on the Supreme Court powers to issue directions, orders or writs, other than those mentioned in clause (2) of Article 32. Under Article 140, Parliament may by law confer upon the Supreme Court certain supplementary powers for a more effective exercise of its jurisdiction.

But the power of appointment of judges through a Collegium is not derived by any law of Parliament as authorized by the Constitution. The Collegium has no legal character and therefore appointments may not be legally valid though Article 141 states that the laws declared by the courts are binding on all the courts in India. It is difficult to interpret Article 141 with reference to appointment of judges. In a representative democracy, the balance of power should not be shifted in favour of unelected institutions which are not accountable to the people.
While judicial decisions need to be implemented, it becomes tricky to implement decisions which have a bearing on the service conditions of judges, including appointments or impeachment because such a situation is not in consonance with the Rule of Law. The Rule of Law means that no one is a judge of his case. It follows that no institution is a judge of its case. And the Rule of law is a principle of equity. Even laws and Constitutional provisions need to conform to it. The problem with our political class is that it lost its way in Governance steeped as it is in corruption, crimes and wrongdoing. And living in a glass-house, it lost its nerve in the exercise of State power in line with the philosophy of representative democracy where governments are elected by the people and accountable to the people in periodic elections.