Co-Authors: Manoj Arvind P. and Prabal Karthikeyan S. , students of Tamil Nadu National Law University.
“I say, that power must never be trusted without a check”
Government is the institution through which society makes and enforces its public policies. It is the agency through which the state exerts its will and works to accomplish its goals. There are three organs of the government in India: the Legislature which enacts the laws, the Executive which implements the laws and the judiciary which interprets the laws. And this is known as the separation of powers. The concept of separation of powers forms the bedrock for the governance of a democratic country. But this principle cannot be followed in its intrinsic strict sense owing to many practical difficulties in the functioning. And hence, most of the democratic countries in the world have adopted a diluted version of this concept under their respective constitutional frameworks. There are also many problems associated with these three organs: The Legislature, the Executive and the Judiciary which we are going to address in depth in this paper.
PROBLEMS ASSOCIATED WITH LEGISLATURE
The parliament is the bicameral legislature in India. We all have been taught the functions of the parliament as making the laws and making the government accountable. But it is not quite clear whether this is the reality. Edmund Burke opined, “Parliament is not a Congress of ambassadors from different and hostile interests, which interests each must maintain, as an agent and advocate, against other agents and advocates; but parliament is a deliberative assembly of one nation, with one interest, that of the whole-where not local purposes, not local prejudices, ought to guide, but the general good, resulting from the general reason of the whole” 1. But the most important thing which can be inferred is that the polarised and conflicting ideas of the representatives must be in line with the dynamic interests and needs of the common public. Representative democracy and parliamentary institutions have deepened its roots for more than seven decades in India. And this upholds the bedrock of the India’s democratic framework. However, in recent times, the debates are brimming with issues of declining standards of the Indian Parliament. And there are myriad issues with the Indian legislature and the parliamentary processes. It is imperative to take proper measures to correct these issues. Let us have a look at the problems associated with the legislature.
REDUCTION IN THE NUMBER OF SITTINGS
Parliament is the chief forum of deliberation. In the early years, Rajya Sabha was used to meet on an average for 90 days in a year. But since the trends were unfavourable during the past seven years, the number has diminished to an average of 68 days in a year. This curtailment in the number of house sittings disturbs the role of parliament as a watch-dog of the executive by making the government accountable to the parliament. At present the parliament isn’t mandated to have a fixed number of sittings. The periodicity and the frequency of the sittings is highly insufficient under the present system. It is pertinent to quote what the Vice president of India, the ex-officio chairman of the Rajya Sabha said in his address in the Fourteenth All India Whips’ Conference which was held in Mumbai in 2008. He said: “The deliberative role of the parliament must be restored by increasing the number of its sittings per annum to amount 2130 days. The comparative figures for the British and Canadian Parliaments are in excess of 140. The US Congress remains in session, on an average, for over 150 days in a year.“
WASTAGE OF TIME IN THE HOUSE
While observing the past few sessions, it can be understood that instances of indiscipline and disruptions are soared in the process of deliberation in the house. According to the parliamentary data, during 2015-2019 in Rajya Sabha, out of 332 sittings which amount to a total 332 hours of available time for Question hour, only 133 hours and 17 minutes were used by the members. These disruptions had sometimes resulted even in the increase in adjournment of the proceedings of the House. This results not only in wastage of time but also is a danger to the chief purpose of the parliament. Apparently, a huge amount of money which is spent on running the houses also goes waste due to the disruptions in the proceedings. With a view to curb the incidences of indiscipline in the house, Lok Sabha has incorporated a new rule in the Rules of procedure for automatic suspension of the member of the house from attending the next 5 sittings after the speaker names him but there are a lot of practical difficulties in the implementation of this rule. When one or two members disrupt the proceedings, they can be named and suspended by the speaker from attending the next 5 sittings but if a considerable number of members interrupt the proceedings, it will be difficult to tackle the situation.
PUBLIC DISCONTENT AND DISTRUST
In India, there is growing distrust towards the legislature. This is due to the fact that the legislature, in recent times, is passing controversial bills. Some examples of controversial legislations are the Citizenship amendment act (CAA) and farm bills. People feel that these legislations are not good for them. For example, the farmers fear that opening the gates of agriculture to the corporate sector is going to lead to exploitation by the corporates. Given that harsh actions have been taken against those protesting, they feel that the legislature not only enacts bad legislations but also uses the help of the Executive to stifle dissent. Legislature is supposed to represent the interests of the electorate. So, if the people do not trust the legislature, it means that the democracy in India is in jeopardy.
PROBLEMS WITH THE PARLIAMENTARY PROCESS
DISTURBANCE DURING THE QUESTION HOUR
The question hour in the Parliament is indispensable because it provides an opportunity to the House to continuously observe the functioning of different ministries and departments of the government by bringing the government in accountable to the House. During the question hour, member gets an opportunity to raise their questions and interrogate about the functioning of the government. Recently the government claimed that the COVID19 posed a threat and the proposal to drop the Question hour was deliberated with all the parties by Defence minister Rajnath Singh and minister of parliamentary affairs Prahalad Joshi. Later this resulted in not having the question hour in the monsoon session. By claiming that there is a threat induced by the pandemic, it tailored the Session dates, duration and timing. The duration of daily sittings was cut down to 4 hours from 7 hours , the 60-minute question hour was dropped and zero hour, the 60-minute period to raise the issues of public importance, was chopped by half. While parties and big political leaders clash, the real losers are MPs and voters of poor regions of the nation. The Question hour is an opportunity not only to question the government but also to voice out the public opinions and the needs of a common man.
NUMBER OF CALLING ATTENTION MOTIONS DECREASED
It is introduced in the parliament by a member to call the attention of a minister to a matter of urgent public importance, and to seek an authoritative statement from him on this issue. In this situation, the concerned minister is directly answerable to the questions raised by the members. However, during the last six years, the number of calling attention motions has declined miserably. This device of calling attention motion demands an authoritative statement from the minister and that’s why this is not preferred by the Ministers.
NOT REFERRING TO PARLIAMENTARY COMMITTEES
Parliamentary committees carry out an important function of making the administration accountable to the parliament. Besides the department-related committees and the standing committees, sometimes ad-hoc committees are appointed by the Chairman of the house to act as think tank to solve a particular issue. The conventional procedure of passing a bill is preceded by referring the bill to the concerned Department-related Parliamentary standing committee (DRSC) for the examination and report after the introduction in Rajya Sabha/Lok Sabha. But this is the discretion of the Chairman or speaker to refer or not to refer the bills introduced in Rajya Sabha/Lok Sabha for various reasons. And the ministers in charge of passing the bills often request the Chairman not to refer bills to the respective committees for various reasons like it is urgent to pass the bill in that session itself or all or some provisions of the bill need immediate implementation and so on. This act of not referring the bills to the committees develop discontentment among the members as subjecting the bills to the committees for deliberation will help in criticising the flaws and shortcomings in the proposed bill.
PASSING OF BILLS IN HASTE
In the last three sessions of the parliament, we witnessed many Bills being passed. For example, on 23rd December 2008, in Lok Sabha 8 bills were passed in just fifteen minutes. Once in Rajya Sabha, six bills were passed in thirteen minutes. Getting legislation passed in such a haste amid the cacophony would not only set bad precedents in the legislative process but also will not do enough justice to the legislation(s) being thus passed This poses a serious threat to democracy, which ought to be characterised by debate, discussion, openness and advocacy of new ideas. It doesn’t help the cause any further, in case the ruling party had won with an overpowering majority and can pass legislations at will.
SUGGESTED REFORMS TO THE LEGISLATURE
● The rule of mandating the proposed bills to undergo the scrutiny of parliamentary committees before becoming laws may be added in the rules of procedure. This will provide a forum for discussions to pass the bills without any flaws.
● The rule to mandate a specific number of parliamentary sittings can be incorporated in the rules of procedure. The minimum number of parliament sessions are essential for reflecting the public opinions, deliberating various policies and issues.
● The rule forbidding the delegation of the question hour with some exceptions may be added to the rules of procedure. The Question hour enables the representatives to pose questions to the minister concerned with the implementation of the laws.
● The parliament can be mandated to hold public consultations. This is the case even in the recently proposed farm bills wherein the agitating farmers accuse the government of not holding proper consultation and deliberation to give clarity on the provisions of the bill. Consultations will help in developing trust of the public towards the executive.
● All the bills can be published in a public forum to encourage criticisms from the public by providing adequate time for giving reviews. For example, for the Draft EIA bill, the time given for the public to give their opinions was cut down to 20 days from 30 days. Further, the draft was not made available in all the regional languages to create awareness. The notification of bills in the public forums will increase the quality of bills and will develop public trust and satisfaction.
SEPARATION OF POWERS BETWEEN LEGISLATURE AND EXECUTIVE
‘Power corrupts; absolute power corrupts absolutely’
Montesquieu the French jurist had developed the doctrine of separation of powers. He took references from the works of Aristotle and Locke in dividing the powers of the government. The separation of power is also essential for preventing the abuse of powers and to avoid the concentration of powers in a single body or person. This led to the division of the government into three distinct organs: the Legislature (law making body), the executive (law applying body) and the law enforcing entity (the judiciary). This separation of powers helps in keeping checks and balances in the functioning of the Government.
While considering the separation of powers between the Legislature and the executive, the closeness of the functions between the executive and the legislature does not nullify the actual constitutional distinction between them. This claim of the separation of powers between the Legislature and the executive is weakened by the fact that the ministers including the Prime minister of the executive are the members of the parliament and the majority of them sit in the parliament in the law-making process. This sort of convergence in these two organs of the government will lead to the inclination of the law-making body (Legislature) towards the executive’s interests.
In India, if we see through the prism of reality, it will be clear that we are actually following a separation of functions and not powers. And hence, we don’t show any compliance with the rigidity of this principle. As previously said, an example can be inferred from the exercise of functions by the Cabinet ministers, who exercise both legislative and executive functions which questions the demarcation between these two organs. The ambit of the executive and the overlap of the legislature and the executive can be witnessed in Ram Jawaya v. Punjab case. In this case, the honourable Supreme court made the observation that the executive thus is derived from the legislature and is dependent on it, for its legitimacy. And even if there is an absolute separation of powers, pragmatically some actions cannot be taken. For example, if a strict separation of powers between the Legislature and the executive is to be followed, the Legislature will not be able to delegate the powers of law making to the executive which may have an expertise in the specific subject matter. If this has been followed, this inflexibility will be a setback in passing the laws with deliberated expert guidance. And this imposition of this doctrine of separation of powers between the Legislature and the executive in its rigid conception will not help in the implementation of the objectives of the modern state. Thus, the separation of power is theoretically improbable and practically impossible.
The powers of the Legislature and the executive should be balanced as it often fails to be, due to the proximity of the functions of both the bodies. The main rationale behind this separation of powers is that there should be a government of law rather than having will and whims of the officials. While considering the three organs of the government, the separation of powers acts as a check against the tyrannical governance.
The amalgamation of the Legislature and executive obfuscates the functions to be carried out by both the bodies which will ultimately end up in the overstepping of the executive in the roles of the Legislature and vice versa.
As stated earlier, the Parliament has been facing huge challenges by the disruptions in the question hour engendered by the executive members who occupy the majority in the Parliament. This disruptions in the question hour defies the very purpose of the same of deliberating and providing answers to the questions raised by the members. This prevents the reflections of the public opinions by the representatives concerned and the time is being squandered by the act of executives in the legislative body and this is a serious threat for the democracy as it is meant for discussions and it will be perverse if the time earmarked for deliberation is marked by insincere demeanour of the executives. And on the other hand, legislature also has an influence over the executive. For example, the President in the executive branch can veto a law, but the legislature can overrule the veto with enough votes. The legislature has the power to approve the presidential nominations, control the budget, and even impeach the president and remove the executive from the office. And there are larger possibilities for the organs to interfere in the powers of the others by keeping checks and balances.
PROBLEMS CAUSED DUE TO OVERLAP OF FUNCTIONS OF THE EXECUTIVE
AND THE JUDICIARY
India does not follow a strict separation of powers insofar as the system of checks and balances are concerned. Each of the three organs of government keeps a check over the activities of the other. Further, the constitution has been drafted in such a way that there is some overlap of functions of the organs of government. But sometimes, problems arise due to such an overlap which need to be addressed. Let us understand the problems that may arise due to the overlapping of functions..
INSTANCES OF JUDICIAL OVERREACH
The concept of judicial activism acts as a tool for the judiciary to take cognizance of an injustice and to correct them. While exercising its powers under judicial activism, there is a high chance that it may step into the functions of the executive. The executive has time and again reiterated that the judiciary is stepping into its domain. For example, the UPA government commented regarding the intervention of the judiciary in the black money probe: “The order completely eliminated the role and denuded the constitutional responsibility of the executive which itself is answerable to the parliament”. The concern regarding judicial overreach even rose in the intervention of the judiciary in the farmers protests. So judicial activism exercised by the judiciary sometimes becomes judicial overreach. Such is not healthy in a constitutional system.
In such cases, therefore, it is highly advisable that the judiciary exercises judicial restraint.
POWERS OF THE PRESIDENT UNDER ARTICLE 72 OF THE CONSTITUTION
LEADS TO FURTHER DELAY
Under article 72(1)(c) of the Indian constitution, “The President shall have the power to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence in all cases where the sentence is a sentence of death”. This gives the convicts adequate room for further delaying their death sentence.
The convicts file an application before the president of India seeking any of the reliefs mentioned above. This is one of the instances where the overlap occurs. Further, the rejection of the application by the president may be further appealed in the supreme court. This contributes to the slow nature of the justice system. Considering the fact that no one should be hanged individually if the crime has been committed by a group and the opportunity of appeal, the case is dragged indefinitely where expeditious justice is needed.
APPOINTMENT OF JUDGES TO THE SUPREME COURT
The judges are appointed by the president in consultation with the council of ministers headed by the prime minister of India. In 2015, the government told SC that the role of the president is ceremonial in nature whereas the real decision is taken by the council of ministers. Appointment of judges thus becomes an executive function. But in case the judges so appointed rule in favour of the government for the reason that they were appointed by it, then the entire justice system will collapse. This is unfortunate since a biased judge may be appointed in the supreme court, which may lead to misadministration of justice which in turn is a threat to democracy itself.
PROBLEMS ASSOCIATED WITH JUDICIARY
TIME CONSUMING PROCESS:
Judicial processes in India have been excruciatingly slow, in the past as well as in the present.But the main aim of the judiciary is expedited justice to the people who are wronged. We need to consider the fact that “justice delayed is justice denied”. In the present times, slow listing of cases contribute to million if people languishing in jails, and the worst part here is that a considerable proportion of such people are in jail for the crimes they did not commit, waiting for a trial to be listed. We need to consider Madras HC’s opinion that “1000 culprits can escape, but, one innocent person should not be punished”. Further, administration of justice has to be expeditious especially because any sort of delay, particularly in criminal cases, may lead to destruction of evidence and witness tampering, as was seen in the Abhaya case in which all but
One, witness turned hostile. Such are against the very spirit of justice. Thus, given he above points, it hardly needs to be emphasized as to why the delivery of justice should be quick.
There are many factors at play which contribute, to a large extent, to this slow nature of judiciary. We need to understand these factors in order to understand the ground reality, which in turn helps us to come up with solutions.
Firstly, there exists huge number of vacancies in the judiciary. In addition, the judge-population ratio is pathetic. “As far back as in 1987, the Law Commission had recommended that the Indian judge to population ratio of 10.5 judges to a million persons, ought to be increased to 107 judges to a million persons within a quarter of a century (by 2000) and to 50 judges per million by 1992” (speech delivered by Ranjan Gogoi). Unfortunately, the judge population ratio was approximately 20 per million population. It is fairly obvious that the present scenario in the judiciary as far as the judge population ratio is considered is a far cry from the levels
recommended by the law commission in 1987. But given the huge volume of cases in the recent times, this kind of an impediment to the administration of justice cannot be and should not be tolerated.
Secondly, the proportion of GDP which is allocated to judiciary is very low. “No state or union territory in India, except Delhi, spent even 1% of its budget on judiciary, said the report which reviewed budgets between 2011-2012 and 2015-2016“(report by tata trusts). Further, this study revealed that the average national spending on judiciary was a meagre 0.08% of its GDP. Such a low allocation of funds cripples the capacity of judiciary. This is further exacerbated by poor utilisation of funds. Thus, increasing the funds for the judiciary would be a shot in the arm.
Thirdly, Indian courts are wholly paper dependent, which slows down the judicial processes to a great extent. The executive has approved the establishment of e-courts. Lack of digitization in the judicial processes acts as a major impediment to speedy administration of justice.
LACK OF PUBLIC CONFIDENCE IN THE JUDICIARY
Judiciary is one of the most important organs of government. Judiciary is the gatekeeper of the ensures that the fundamental rights of people are protected, thereby helping to maintain the supremacy of the constitution. Establishment of judiciary is meaningful only when the people feel that there is an institution to protect their fundamental rights and that it keeps the government under check. But once the trust is lost, judiciary is weakened. That is how we can describe the present scenario. At present, public lacks confidence in judiciary as an institution. For example, in the Ayodhya case, the SC ruled in favour of the Hindus, which leads some people to believe that the ruling is in favour of the government since it helps the government to pursue its goal of Hindu Rashtra. If the public does not trust the judiciary, then they will be hesitant to file a case since they may think that their spending all their money and time will go in vain. That is against the basic tenets of justice system. So, it is very important that public trusts the judiciary in order for the system to run smoothly. Let us consider some important factors which have led the people to lack confidence in the judiciary.
Firstly, the public believes that there is a nexus between the government and the judiciary. “This laziness politicises (and as a result, obfuscates) the root issue – opacity in case listing“. There seems to be many cases in which there is quick listing of cases where government is concerned.
An example is when Arnab Goswami’s case was quick listing, where Arnab Goswami has backed government in many issues. This is one very important factor which leads the public to believe that government and judiciary and the government are working together. Also, given the fact that the ruling is in favour of the government most of the times along with the dismissal of any ruling otherwise as an exception, there is a growing public distrust towards the judiciary.
Secondly, there is a lack of transparency in the judicial processes. This contributes to the increasing distrust towards the judiciary. Lack of transparency exists in the manner of listing of cases, the appointments to the judiciary, the ratio decidendi of some controversial cases etc.
Lack of transparency exists due to the fact that judiciary is outside the scope of RTI. Such an opacity combined with the rulings in favour of government, including the quick listing of cases where government is involved, contribute to the distrust towards judiciary.
The justice system is expensive in itself. One reason for this expensive nature of the judicial process is it’ s time-consuming nature. The parties may be disinterested in going through this tedious, expensive and futile process and may rather decide not to file a case and let the perpetrators of the wrongs go Scot-free. Such a thing, again, is against the very purpose of the existence of the justice system.
POSSIBLE REFORMS TO THE JUDICIAL PROCESS
Based on the above discussions, we can clearly see that some serious reforms are needed in order for the justice system to fulfil its purpose to the fullest extent. Let us have a look a some of the recommendations.
● The proportion of GDP that goes to the Judiciary may be increased. This step ensures that the judiciary is endowed with more resources, the lack of which is one of the major contributors to the reduced capacity of the judiciary. This makes sure that the administration of justice is better since these resources can be used to fill the vacancies, establish fast-track courts, improving infrastructure etc.
● The low judge-population ratio leads to slow process of justice administration, since there aren’t enough judges to decide the cases. So, in line with the recommendations of the law commission in 1987, the judge-population ratio must be increased. In addition, the existing vacancies must be filled. This ensures that the process of the justice system is expedited.
● The judicial processes, as far as possible, may be digitized. Digitization may include “Pleadings will be filed online, defects pointed out by the Registry rectified online, electronic payment of court fee, summons issued via email, and judgments and orders available online in real time (as and when they are dictated).”(speech by Former CJI Ranjan Gogoi in 2013). Digitization speeds up the process to a great extent, which in turn reduces the cost that people have to bear. This in turn encourages people to file cases.
● The courts need to identify some priority areas such as rape cases, environmental
pollution etc. and establish fast track courts to quickly dispose off such cases which need specific attention.
● There must exist transparency in the judicial processes. Transparency helps to instil the confidence in judiciary as the gatekeeper of the constitution, which in turn encourages people to file cases. Transparency, in this sense means transparency in the manner in which cases are listed, judicial appointments, ratio for deciding the cases as pointed out before. In addition, in order to bring in transparency in the process, we may bring Judiciary under the ambit of RTI insofar as the RTI request requires a review of a previously decided case, process of listing of cases, judicial appointments and some other matters on which depends the trust of the public on the judiciary. A Separate body consisting of former judges may be established in order to deal with the RTI requests. This body is to be set as an initial screen which an RTI request should pass in order for the RTI request to be complied. A defined set of criteria must be established for the RTI request to pass the scrutiny of the body.
There is a reason why India adopted democratic form of government. It is to ensure that the rights of people are protected and their voice heard. Those ruling the citizens must not act contrary to the interests of those ruled. On the basis of the above discussions, it is clear that the aforementioned problems need to be corrected by suitably adopting the recommendations in order to achieve the fullest capacity of the Indian democratic system, considering that India is the world’s largest democracy. The basic purpose that lies behind the establishment of all the three organs of the government is to ensure the welfare of its citizens. The three organs of the government must fulfil their respective roles in order for Indian democratic setup to function smoothly. Proper functioning of all the three organs will help to realize the dream of our constitution makers.
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