In a parliamentary democracy like India, ________________.
Directions: Answer the given question based on the following passage:
The current phase or judicial intervention has often been termed judicial activism, but the Supreme Court has held the view that far from being an activist court, it has only tried to do what it should have done long ago. i.e., enforce the law. In the process if the corrupt come to grief or the executive is called to account for its acts of omission or commission, that is all to the good.
Because we have a written Constitution, the ultimate arbiter of whether laws have constitutional validity or whether the actions of the executive conform to the law will always be the courts. With this there can be no quarrel. When we look at the constitutional provisions for the establishment of the Supreme Court and its powers we find that the basic function of the courts is to adjudicate, which means to determine judicially in a matter in which there are conflicting opinions or adversaries in a case.
It is only Article 141 that confers on the Supreme Court a power which goes beyond adjudication and that is to declare a law that will be binding on all courts in India. The declaration of such a law can be through an interpretation of the existing law, or by a judgment that a particular law is ultra vires or by laying down guidelines of how courts will decide a matter where the law is silent or where there is a legal lacuna.
One example of this is a case which came before the then Chief Justice of India, Justice P. N. Bhagwati, relating to the quantum of compensation which should be paid to persons who had strayed on to an army firing range and sustained injury while trying to retrieve what they thought was an empty shell but which turned out to be live. Justice Bhagwati ruled that whereas there was no specific law governing such compensation, there were other –laws which lay down the guidelines of compensation to victims of motor accidents, rail accidents, air accidents, etc. He then fixed compensation at an amount more or less equivalent to what the law permitted in the case of an air accident. This judgement is now law for all courts.
That, by itself, does not mean that the power which vests in Parliament under Part V, chapter 2 of the Constitution to enact laws under lists I and 3 of the Seventh Schedule also vests in the Supreme Court under Article 141. Unless the court decides that the law itself is unconstitutional, it is bound by every law of Parliament and Stale Legislatures. This is the fine-tuning of separation of power in India between the legislature and the judiciary.
In all this where does the executive fit in? Parts V and VI of the Constitution make, a specific provision for the Union and the State executive that the executive power of the Union vests in the President, to be exercised by officers subordinate to him, and the executive power of each State vests in the Governor, to be exercised by officers subordinate to him. If we take legislation to be the responsibility of the legislatures and adjudication to be that of the judiciary, then the residuary function of implementing the laws and acting according to the policy of the Government is the responsibility of the executive. This is not a delegated or subordinate function - it is the constitutional responsibility of the executive.
Under Article 73 the Union has executive powers in all matters with respect to which Parliament has the power to make laws, just as under Article 162 the executive power of the State extends to all matters which fall within the legislative jurisdiction of the State Legislature. How the Government will exercise this executive power is determined by rules framed under Articles 77 and 166.
In a parliamentary democracy, because the Council of Ministers is collectively responsible to the legislature, it is the executive that takes the lead in legislation. Unless the executive supports a particular Bill there is almost no chance of its being enacted into law because it would not muster enough support in the House. It is the executive. Therefore, this is the initiator of legislature. It is the executive which prepares the annual statement of estimated receipts and expenditure under Articles 112 and 202 respectively, popularly known as the budget, and then pilots the discussion on grants, the Appropriation Bill, etc. which gives the Government the legislative sanction for incurring expenditure. It also places before Parliament appropriate proposals for taxation.
Just as there is a finely tuned balance between the legislature and the judiciary the executive also is subject to constitutional checks and balances. The biggest check is law itself and if any member of the executive violates it he is liable for action before a court of law. Then there is the writ jurisdiction of the Supreme Court and High Courts, whereby the executive can be directed to desist from a particular course of action or, conversely, directed to perform a particular function. The legislature, to whom the Ministers are responsible, can call the Government to account through discussions, resolutions, adjournment motions, budget debates, questions, and no-confidence motions. If need be the legislature can even oust the Government. However, these checks and balances by themselves do not give the other organs of the State - the legislature and the judiciary - the power to interfere in the working of the executive or to place it in a subordinate position.
All matters relating to governance being the responsibility of the executive, there is no authority in India that can interfere with its day-to-day working. Let me try and illustrate this point. The postings and transfers of officers fall within the exclusive purview of the executive.
Provided that there is no arbitrariness in this, the courts cannot interfere. This means that the courts cannot decide that an extension should be given to the Director of CBI, that his subordinate officers should bypass him in an investigation or that a particular officer should be transferred to a particular place.
Unfortunately, this is precisely what the Supreme Court and the High Courts have been doing in a number of cases and a weak and pusillanimous Government has been surrendering in every case. The investigation of an offence may lead to a judicial process, but provided that the investigation is done according to law, the investigating agency is certainly within the supervisory control of the executive.
For the courts to order that the Government will not exercise its power of supervision and direction under Section 4 of the Police Act is an undue interference. For the Government to direct that before an investigation is undertaken into a particular case prior approval should be sought is perfectly valid, unless the law prohibits it. Nowhere in the world is the power of the police to investigate unfettered, except in a dictatorship, and the power to supervise, direct and control the police must vest in the executive. The courts may intervene only if the Government uses its power arbitrarily.
The executive has every right to decide how it will dispose of public property, provided that this is done according to a predetermined policy, clearly enunciated rules and in the public interest. Certainly it cannot be done to favour individuals or to cause pecuniary loss to the State.
When Ravi Shankar Shukla was Chief Minister of Madhya Pradesh and the capital shifted from Nagpur to Bhopal, he ordered the construction of several thousand residential units for Government servants. An objection was raised in the Vidhan Sabha to the effect that the work was awarded to a consortium without inviting tenders. The Chief Minister stated that there was paucity of time, that he had ordered the sanction of the work and its award to the consortium and that no officer was to blame.
Seven years later one of his successors, D. P. Mishra, made a similar statement in the legislature when an objection was raised about resettling 25,000 East Pakistan refugees in a district, for which purpose only seven days were given to the local officials to prepare the camps. As the person in charge, I had invited no tenders but had completed the work in time. The Chief Minister fully supported me and no further questions were asked.
What, then, is the role of the executive in a democracy? First, foremost, it is to govern, to provide governance and to implement the provisions of the Constitution and the law. For that you need a political head of the executive who, like D. P. Mishra, could say "I ordered it and so it has been done". The present lot who masquerade as ministers neither have the capacity to govern, nor have the courage. Between them they have reduced our executive to a position of impotence and subordination.