Context
The raging debate over the meaning of ‘We the People’ following the Vice-President of India’s speech requires a closer examination.
Relevance
GS Paper-2: Separation of Powers between various organs Dispute Redressal Mechanisms and Institutions
Mains Question
What exactly is “separation of powers” doctrine? Is the judiciary a lesser institution than directly elected institutions such as the parliament in a constitutional democracy like India because it is non-elected? Analyze critically. (250 Words)
What exactly is the Issue?
- The Vice President’s speech, with particular reference to the judiciary, held that ‘We the People’ essentially gives primacy to elected members of Parliament and state legislatures.
- The Vice President elaborated on this theme, implying that the separation of powers does not equate to the three pillars of democracy: Parliament, the judiciary, and the executive.
- In his opinion, the judiciary and the executive are inferior because they are appointed rather than directly elected by the people.
The Real Meaning of “We the People”
- The meaning of ‘We the People’ is not defined in the Constitution. It is concerned with citizens, not with any particular group or institution.
- There are individuals in the judiciary, the executive, and the majority of the other constitutional institutions.
- There are also those in the military, police, government, and the vast private sector. They are all people no less.
- To identify representatives in the legislature to be the sole representatives of the people is a travesty.
Issue of the Primacy of Parliament
- United States: o In the United States, the President has the authority to appoint judges, though this must be approved by Congress.
- However, the President is elected directly by the people and has prerogatives in several areas that do not apply in a parliamentary democracy.
- The Prime Minister-in-Cabinet lacks the powers of the President of the United States. As a result, a judicial review to determine the suitability or otherwise of the candidates nominated is possible.
- United Kingdom: o It is governed by long-standing conventions and laws passed by the House of Commons.
- It lacks a written constitution that allows for judicial review.
- Despite the primacy of Parliament, strong conventions exist. Conventions have a long history in the United Kingdom.
- Laws can be changed, broken, or repealed. Even in Parliament, the Speaker of the House of Commons is elected but becomes a non-party figure who decides when to step down.
The Conventions
- Speakership: o In India, the first two Speakers, G.V. Mavalankar and M. Ananthasayanam Ayyangar, and later Neelam Sanjiva Reddy, resigned from the ruling party to give the entire Parliament a sense of impartiality in ensuring a proper place for minority parties.
- In the United Kingdom, the Speaker is retained by the House of Commons if he continues in office.
- Despite the efforts of the first two Speakers of the Lok Sabha to establish a precedent, this does not occur in India.
- The lack of convention has had a significant impact on the operation of Parliament. Because of our unwillingness to honour conventions, our laws and Constitution sought greater specificity, which often resulted in ambiguity in language and meaning.
- B.R. Ambedkar’s perspective on conventions: o Democracies cannot be run solely by laws passed in representative legislatures. They require conventions.
- B.R. Ambedkar recognised that Orientals cannot be relied on to follow conventions. Institutions may even be destroyed unless conventions are solidified into constituent laws and bound by strong threads, jeopardising the very purpose of a Constitution protecting the citizen.
- There is a cost to converting conventions into law, and B.R. Ambedkar was well aware of it.
Concerns
- Attack on institutions: o Today’s assault on the judiciary is aimed at a powerful constitutional authority that, for the most part, refuses to deviate from its constitutional responsibilities.
- The fates of the Election Commission of India, independent investigating agencies, the civil service, and the police are classic examples of constitutional and other legal responsibilities being ignored.
- Virtual war between the centre and the states: o There is currently a virtual war in the country between elected governments in states and Governors appointed by the Centre, which has raised the question of whether the institution of Governors is even necessary in the first place.
- The Constitution does not intend Governors to be subservient to the central government or even to be detractors of state legitimacy.
- The danger now is that the Centre consciously believes it is superior to the States, and that their Governors serve as its proxies.
- This violates the very dignity of a State’s people as inferior to a higher power outside their State, the constitutional validity of which rightfully requires the judiciary to be the final judge.
- Centralization: o The separation of powers acceptable to the Centre does not apply to the states, where an appointed Governor can defy both the legislature and the elected government.
- Members of the ruling party appear to be pushing for greater centralization not only within constitutional institutions at the Centre, but also in states ruled by parties other than the national ruling party.
Conclusion
- Aside from being enshrined in the Constitution, the theory of separation of powers is more fundamental to any democratic society than the letter of the Constitution.
- The legislative, judicial, and executive branches are all equally important pillars of a healthy and successful democracy.
- With judicial and measured constitutional functional overlap, these institutions’ institutional partnership is feasible. This type of collaboration bridges the legislative, executive, and judicial divides, allowing the government to function smoothly.
- The spirit of constitutionalism could only be enabled by what he called constitutional morality, which meant that the government and citizens should act by adopting constitutional principles and norms, and the central government should work to maintain the spirit of cooperative federalism with the state governments.
