India Needs a Transfer of Power Away From the Executive
The largest democracy in the world is in the state of ‘ Undeclared Emergency’.
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Forty five years ago, India's then Prime Minister Indira Gandhi declared an Internal Emergency and suspended all of India’s civil liberties and fundamental freedoms. She ruled from 1975-1977 by decree, and passed a series of controversial constitutional amendments that not only legitimised her dictatorial rule, but also expanded her power, with the most controversial one being the 42nd Amendment.
It seemed that at that point, India, the poster-child for democracy in the 'Third World' had reached its end. India's democracy withstood a bloody partition, the integration of the princely states, three wars with Pakistan, and the worst refugee crises in world history in 1947 and 1971. So, could it slide into dictatorial rule in 1975?
The last six years seem reminiscent of 1975, and have challenged the fundamentals of the Indian Constitution. Today, many have pointed out, the country is an ‘Undeclared Emergency.’
The passage of the UAPA Amendment Act (2019), the Right to Information Amendment Act (2019), the Jammu & Kashmir Reorganisation Act (2019) and the Citizenship Amendment Act (CAA) are amongst many instances where the government used its brute majority to impose its will on the country, similar to Indira Gandhi’s pushing through bank nationalisation, and the passage of the 38th, 39th, and 42nd Amendments to the Constitution.
During the COVID-19 pandemic, under the guise of a health emergency, the government was able to unilaterally declare a lockdown, amend the Essential Commodities Act, enact sweeping economic reforms and issue 5000+ notifications on COVID-19 without Parliamentary oversight. Given these executive decisions, one wonders why the Indian Constitution, which was built on the principles of the separation of powers, democracy and secularism, unable to contain executive overreach?
The answer partly lies in the historical context of the Constitution’s creation. Writings and speeches by Jawaharlal Nehru, Sardar Patel, and B R Ambedkar convey the immense challenges faced by India in 1947. At the heart of these challenges was an overarching desire for national unity as, the India we know today did not exist yet. Forty percent of the subcontinent was not directly controlled by the Government of India, but was indirectly ruled by the Princely states.
Regional secessionism was a concern for Nehru’s government after seeing the violence and bloodshed the Partition had wrecked on the nation, while there was fear that Princely states would try to become independent, as seen in the cases of Hyderabad and Junagadh. India did not have a unified economy, and had not experienced an election with universal franchise until then.
The overarching concern of India’s founding fathers was to ensure national unity and prevent a second partition, which is why the central government was accorded with immense powers, and the ability to convert India into a unitary state, if needed.
There are ways India can reform its political structure to move power away from the Executive to Parliament, and to states and local governments.
Currently, the Constitution only mandates that Parliament meet at least twice a year, for an unspecified period of time. The Parliament should be mandated to meet for a minimum number of days in the year, with stringent attendance requirements to not only ensure continuous debate on policy matters, but to allow MPs to speak independent of their party whips and introduce private members bill.
Parliament needs to meet more frequently,
- Firstly, to provide oversight over the governments, and
- Secondly, to prevent the misuse of presidential ordinances to impose the government’s will
Parliament ought to meet once every two months, at the minimum, while also reducing the validity of government ordinances from 6 months to 2 months, ensuring that Parliament is in session to approve or disapprove of an ordinance.
Transparency is at the heart of a democratic system, which is why according to RTI officers the same constitutional rights as judges and election commissioners will empower civic society to hold the government accountable. The recent RTI Amendment Act undermines the principle of the act and of transparency. Unilateral appointments weaken institutional oversight that a country as vast as India needs.
Appointments of RTI commissioners, judges, the head of the CAG, the NGT Chairman, heads of Universities, and Election Commissioners, ought to require the consent of Opposition members. LK Advani, leader of the Opposition during the UPA government tenure, had proposed that the CAG and election commissioners be appointed by a panel which includes the Leader of the Opposition as this would strengthen parliamentary oversight in such appointments.
In the event that a party does not cross the 10% threshold to become the official Opposition, a constitutional amendment should ensure that the leader of the largest opposition party in Parliament ought to be the Opposition’s representative on such panels. The proposal was rejected.
The constitutional amendment process ought to be made far more stringent, especially when it comes to changing state boundaries, to prevent a repeat of the Jammu and Kashmir Reorganisation Act. A constitutional amendment to change a state’s boundaries should not only pass through both houses of Parliament with a 2/3rd majority but also through that respective state’s Assembly with a 2/3rd majority. This will ensure that the power of the governor, a government’s appointee does not act as an unelected people’s representative, which is an inherently contradictory concept.
The most radical reform I propose is to counter-balance the executive’s dominance to term limit MPs and the prime minister. I would propose that an MP cannot be in Parliament for longer than 20-30 years and that a PM cannot rule for more than 10 years across his or her lifetime. The moment the PM finishes ten years, s/he cannot run for any government office, as an MLA, a panchayat member, MP in either house of parliament and cannot be appointed to a government post or advisory committee for ten years after leaving the office.
In other robust democracies, politics is not considered a life-long career, and that should not be in India as well, which is why term-limiting MPs will ensure that Parliament has new members every few years and is not dominated by individuals well past their prime.
These brief proposals are some ideas to ensure that no government can abuse its mandate in office and allow India’s institutions to thrive regardless of the government in charge. Forty five years since the 'Emergency', the pressure on Indian democracy is immense, and in order for the idea of modern India, a secular and vibrant democracy that supports the rights of all its citizens, the executive must devolve power away from the centre to the states and to institutions. Only when these actions occur, will there be continued faith in the country’s public institutions to serve India, and overcome religious, caste and linguistic loyalties.
(This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)
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