The legislature should not be enticed to put its hand in the cookie jar of the executive; after all, this behavior can only become addictive, and potentially hazardous to the health of our democracy.
The separation of powers doctrine is held sacred across modern democracies of USA, France, and many others in Western Europe. This doctrine ensures clear demarcation of powers bestowed to the executive, legislature and the judiciary. Its proper implementation enables checks and balances across different wings of the government, and avoids tyrannical behavior of any single branch. In this context, Article 74(1) presents serious breach of this system. It enables legislature’s control over the executive, and threatens the spirit of democracy with overwhelming powers in the hands of the legislature (acting as the executive).
Article 74(1) of the Constitution reads, “There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advise.”
This clause was introduced in the constitution by the 42nd Constitutional Amendment in 1976 by the Indira Gandhi government. Before this date, no such provision bounding the actions of the President in accordance with advice of the Council of Ministers existed. While many new provisions introduced by the 42nd amendment were repealed by the succeeding VP Singh’s Janata government, this was left without any changes. Article 74(1) makes it mandatory for the President to act on Council of Ministers’ advice. This applies to all the matters concerned with the President. This provision, therefore, has deep impact on our democracy. It effectively renders the President powerless in most executive functions left to his disposal. These include: appointment of individuals for various constitutional posts, appointment of the State Governors, exercising judicial powers such as pardon, reprieves, etc. The President is bound to make all these decisions on the advice of the Council of Ministers, which also has legislative powers in the Parliament. This is in violation of the separation of powers doctrine that ensures accountability in executive and legislative functions of the government.
Many argue that Article 74(1) is justified because the Council of Ministers represent the people, hence their decisions reflect interest of the people. This argument fails to consider historical precedence and the basic principles of democratic framework and design, and also tenets of reason that guide such structure of the government. Historically, executive has not necessarily acted in interests of the people when endowed with sweeping powers. The proclamation of emergency in 1975 is a living proof of such behavior. Additionally, the democratic function of separating the legislative from the executive (and the judiciary) has worked very well in the USA and France. In fact, even our constitution makers took notice and did not have any such provision in the original constitution to begin with. Lastly, good reason commands that these functions of the government should be strictly separate. The legislature should not be enticed to put its hand in the cookie jar of the executive, after all, this behavior can only become addictive, and potentially hazardous to the health of our democracy.
Given that we have a Parliamentary form of government (as opposed to Presidential form), such arrangement might have been justified if there was an in-built fail mechanism against misuse of powers by the Council of Ministers. The rampant misuse of ordinance making power by Indian governments showcase one such misuse and overuse of this power. Unfortunately (or should I say, fortunately), the only fail safe against such action is the judiciary. However, judiciary can only react ex-post and it has been grossly overburdened for many years now. The Law Commission and prominent legal experts should take a deep look at Article 74(1). They must build a reasonable fail-safe mechanism against roller-coaster of an executive mischief that this article is, and ensure that law is held and practices in spirit of our democratic system.
Manuj Jindal, IAS 