Date: 27/01/2023

Relevance: GS-2: Separation of Powers between various organs Dispute Redressal Mechanisms and Institutions.

Key phrases: ‘We the People’, separation of powers, parliamentary democracy, time-honoured conventions and laws, strong conventions, powerful constitutional authority, virtual war.

Why in News?

• The raging controversy over the very meaning of ‘We the People’, after the speech made by the Vice-President of India needs a closer look.

What is the issue?

• With its particular reference to the judiciary, the Vice President’s speech was of the view that ‘We the People’ essentially gives primacy to elected members of Parliament and the State legislatures.
• Expatiating on this theme, the Vice President implied that the separation of powers does not equate to the three pillars of democracy: Parliament, judiciary, and the executive.
• In his view, as the judiciary and the executive are appointed and not elected directly by the people, they are inferior.

The meaning of ‘We the People’:

• The Constitution does not define ‘people’. Its concern is about citizens and not any group or a particular institution.
• There are people in the judiciary, the executive, and most other constitutional institutions.
• There are also those in the military, the police, public enterprise, and the vast private enterprise. 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:

• U.S.:
  • In the United States, the President has the power to appoint judges, although this should be endorsed by Congress.
  • But the President is directly elected by the people and has prerogatives on several issues which do not apply to a parliamentary democracy.
  • The Prime Minister-in-cabinet does not have the powers of the U.S. President. And hence the possibility of a judicial review to check the suitability or otherwise of the candidates nominated.
• United Kingdom:
  • It is run by time-honoured conventions and laws passed by the House of Commons.
  • It does not have a written Constitution which gives a judicial review.
  • But strong conventions are in place despite the primacy of Parliament. Conventions in the United Kingdom have an inviolable tradition.
  • Laws can be changed, violated, and repealed. Even in Parliament, the Speaker of the House of Commons is elected, but becomes a non-party man, choosing when to retire from office.

Honouring conventions:

• Post of the speaker:
  • In India too, 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 House of Commons retains the Speaker if he continues to hold office.
  • This does not happen in India, despite the first two Speakers of the Lok Sabha having tried to set a convention.
  • This lack of convention has drastically affected the running of Parliament. The reluctance to honour conventions made our laws and Constitution strive for greater specificity, often leading to quibbling in language and meaning.
• B.R. Ambedkar’s view on conventions:
  • Democracies cannot be run only by the laws passed in representative Assemblies. They need conventions.
  • B.R. Ambedkar realized that Orientals cannot be trusted with conventions. Unless conventions are solidified into constituent laws and bound by strong threads, institutions may even be destroyed, endangering the very purpose of a Constitution protecting the citizen.
  • Indeed, there is a price to be paid for converting conventions into law and B.R. Ambedkar knew it.

Concerns:

• Onslaught on institutions:
  • Today’s onslaught on the judiciary is aimed at a powerful constitutional authority that is, by and large, refusing to deviate from its constitutional responsibilities.
  • The fate of the Election Commission of India, independent investigating agencies, and the civil service and police are a classic example of dereliction of constitutional and other legal responsibilities.
• Virtual war between the centre and states:
  • There is a virtual war in the country now between elected governments in States and the Governors appointed by the Centre, which has brought into focus the question of whether we need the institution of Governors in the first place.
  • The Constitution does not intend for Governors to be subordinated to the central government or even as detractors of the legitimacy of States.
  • The dangerous portent now is that the Centre consciously feels that it is superior to the States and their Governors are its proxies.
  • This goes against the very dignity of the people of a State as inferior to a higher power outside their State, the constitutional validity of which rightly needs the judiciary as the final judge.
• Centralization:
  • The separation of powers acceptable to the Centre is not applied to the States, where an appointed Governor can defy not only the legislature but also the elected government.
  • Apparently, members of the ruling party are pushing for greater centralization not only within constitutional institutions at the Centre but also in states that are ruled by parties other than the national ruling party.

Conclusion:

• Apart from being enshrined in the Constitution, the theory of separation of powers is basic to any democratic society, more than the letter of the Constitution.
• Parliament, the judiciary, and the executive are equally important pillars of a healthy and successful democracy.
• The institutional partnership of these institutions is feasible with judicial and measured constitutional functional overlap. Such cooperation bridges the legislative, executive, and judicial divide that makes Government operate smoothly.
• The spirit of constitutionalism could only be enabled through what he called constitutional morality, i.e., the government and the citizen should act by taking on board constitutional principles and norms, and the central government should work to maintain the spirit of cooperative federalism with the state governments.

Source: The Hindu

Mains Question:

Q. What is the doctrine of "separation of powers"? Does the non-elected nature of the judiciary make it an inferior institution to directly elected institutions such as the parliament in a constitutional democracy like India? Critically analyse.