UNION AND STATE

GOVERNMENT

Syllabus: Union and State Government –

 Principal organs of the Union Government:

 Envisaged role and actual working of the executive, legislature and supreme courts
 Principal organs of the State Government:
 Envisaged role and actual working of the executive, legislature and high courts

S.NO TOPIC

1 Union Executive
 President
 Presidential Activism

2 State Executive
 Role of Governor

3 Union Parliament
4 Judiciary
5 Judicial Activism

Questions:
1. Discuss the constitutional position of president. Is it appropriate to call Indian president as rubber
stamp?
2. What is meant by Presidential activism? Critically analyze the desirability of presidential activism.
3. Discuss the evolution of institution of Prime Minister and the systematic factors shaping the
institution.
4. Critically examine recommendations of Sarkaria Commission that is Governor is that linchpin of
cooperative federalism. Do you support the abolition of post of governor?

UNION EXECUTIVE
 President
 Prime Minister

NATURE OF POLITICAL SYSTEM IN INDIA

India has parliamentary form of government.

Why India adopted parliamentary form of government?

 Experience
 Supposed to be more accountable
 Address the diversity or plural executive

It is to be noted that in reality executive controls the parliament. Parliament ensuring financial
accountability is a myth. Prime Minister in Parliamentary system is the strongest democratically
elected head.

Type of parliamentary system in India:

There are two types –
 West Ministerial Model (British) – India
  Chancellors Democracy (Germany)

Features of West Ministerial Model:

 Dual Executive
 Cabinet Form of Government

Why two heads?

In parliamentary system, there are two heads –

 The nominal head – name sake. For example, Queen in Britain and President in India
 Head of the government – real executive i.e. prime minister

The nominal head is required for two reasons –

(1) To ensure continuity in the administration
(2) Since parliamentary system is not based on party system, since the Prime Minister represents the
majority party, there should be a head that can be seen as an above parties and represent the nation
as a whole.

PRESIDENT

Nature of the institution of the president in India:

 It has been a matter of debate. The controversy started even in the beginning. First President
Dr RAJENDRA PRASAD asserted his discretion with respect to HINDU CODE BILL. Ultimately the
controversy was settled with the intervention of M C SETALVAD, the first attorney general of
India clarified that India has a parliamentary form of government where President is just a
nominal head

Why controversy emerged?

According to JAMES MANOR, constituent assembly has left many provisions with respect to the
president open-ended. For example –
 In the original constitution, it was not binding on president to act upon the aid and advice of
council of ministers
 Even in case of constitution amendment bill, it was not mandatory for President to give assent
 The pocket veto of Indian president is stronger than US president
 President can send any bill back for reconsideration (ordinary bill) of parliament
 President takes the oath to defend the constitution and can be impeached for the violation of
the constitution, one of the arguments given by Dr Rajendra Prasad

Evolution of the institution:

1. 24th Amendment Act, 1971 has made it mandatory for President to give the assent on
Constitutional Amendment Bill

2. Shamsher Singh Vs State of Punjab (1975), Supreme Court held that President and Governor are
just the constitutional heads

3. 42nd Amendment Act, 1976 settled the controversy. It became clear that President is to act on aid
and advice, President defends the constitution by observing the constitution

4. 44th Amendment Act – Unfortunately, it has again unsettled the situation. It restored partial
discretionary powers to the president

5. In Ram Jawaya Vs State of Punjab (1995), Supreme Court held that President and Governor are just
the constitutional heads
ANALYSIS - 44th Amendment Act
 It is not seen as a right step, if we go by the norms of the parliamentary form of government.
If President is given discretion, it will be difficult for Prime Minister not to accept
 In parliamentary system, President cannot be the institution of accountability. It is the
responsibility of parliament and ultimately people to hold government responsible
 It will result into the development of the alternative centre of power. President cannot be
removed except through the impeachment, which requires toughest majority
 According to the scholars like Atul Kohli, 44 Amendment Act should be seen in context of
th

India’s party politics. He interprets it as an attempt by non-Congress parties to ensure that

President can be their men at the centre as MLA’s also participate in the election.

PRESIDENTIAL ACTIVISM

In general, activism is defined as an attempt by a constitutional functionary to go beyond the limits of

his office as prescribed in the constitution. It means entering into the domain of someone else.
Presidential activism in Indian context means President entering in the domain of Prime Minister.
Hence, when President asserts the discretion –
 Sending the advice back for reconsideration
 Sending the bill back for reconsideration

Is presidential activism desirable?

 No. Not desirable

Why?
1. It will result into the emergence of two centres of power
2. President is not seen as the institution of accountability. It is the role of parliament to hold
government accountable.

History of presidential activists:

India has activist presidents since beginning, starting with Dr Rajendra Prasad asserting his discretion
on Hindu Code Bill.
We can give reference to Zail Singh, using pocket veto on the Post Office Bill of Rajiv Gandhi
government.
President K R Narayanan seen as one of the most activist president –
 He has sent the advice for imposition of Article 356 twice
 Instead of reading the speech given by the ministry, he preferred to give interview on the eve of
Republic Day
 Instead of reading the speech provided by MEA on the occasion of visit of US President Bill
Clinton, he read his own speech. In his speech, K R Narayan talked about –
 Dangers of unipolar world
 Relevance of NAM

A P J Abdul Kalam –
 He sent the Office of Profit Bill back/reconsideration
 He was not only activist but a populist president. It is not considered right on the part of
President to go for too much interaction with the people

Pranab Mukherjee –
 He is also seen as activist president
 He has expressed displeasure with the way government has been working

Why presidential activism is undesirable?

In India, presidential activism has not been based on any principle; it is based on party politics. It is
reflected normally when President is from different party and PM from other, this state is called co-
habitation. It is a term taken from French political system. In France, govt. runs smoothly when both
are from same party.

What is the envisaged role of President under Government of India?

1. If we go by Parliamentary system as explained by Walter Bagehot, there are two executives –
 The real
 The dignified
President is a position of dignity. As a position of dignity, President does not have discretion. He is
supposed to act as a friend, philosopher and guide of ministry.

2. A/c to former President R Venkat Raman, he became the President when coalition era started.
Coalition era creates scope for the discretionary power of President. He described himself of
“Copybook President”. He developed the healthy conventions and minimized the scope of discretion.
He described the position of President as “Emergency Lamp”. It means Prime Minister is the main
switch. Only when main power is off, emergency lamp comes to light. It means so long PM and Council
of Ministers exists. President has no discretion. It is to be noted that unlike states, there cannot be a
President at union. President is bound to act on the aid and advice of care taker government.
However, it is not appropriate to call President a “Rubber Stamp”. It is a constitutional post of
dignity. We can give reference to Article 78. Article 78 mentions the duties of Prime Minister. Thus,
the constitution has made a fragile relationship between the two.

POSITION OF PRIME MINISTER

Position of Prime Minister can be understood with the context of his relationship with President as
well as with respect to other ministers. In a parliamentary system, Prime Minister is known as captain
of the ship of state. He is also known as keystone of cabinet architecture.
Unlike President under Presidential system, Prime Minister in Parliamentary system controls
legislative as well as executive. He is the leader of the house. With respect to council of ministers,
there are two perspectives –
 Prime Minister as primus inter pares – first among equal
 Prime Minister as inter stela luna minores – moon among starts

Whether Prime Minister is first among equal or moon among stars depends on multiple factors:
 The personality of Prime Minister
 The position of his party in Parliament

EVOLUTION OF THE INSTITUTION OF PRIME MINISTER IN INDIA:

1. PANDIT NEHRU
Till Sardar Patel was alive, Nehru was first among equals. But after his death, there was no one in
cabinet to match the charisma of Nehru. Hence, he could emerge as moon among stars

2. LAL BAHADUR SHASTRI

His term is too short to establish the trend, yet we can say that during his term the centralisation of
power in Prime Minister Office started. This means weakening of cabinet

3. INDIRA GANDHI
According to Prof. M P SINGH, during her term, the office of PM started showing the features of
presidential form of government. It can be said that, instead of parliamentary form of government
based on collective responsibility (cabinet form), Prime Ministerial form of government formed. The
institution even developed the dictatorial trends. There was complete marginalisation of ministerial
(Council of Ministers)

4. RAJIV GANDHI
He continued with the trend. He believed in technocrats. This has further weakened the council reform

5. COALITION ERA
 Theoretically coalition will weaken the position of government or Prime Minister. Coalition
government is a fragmented government. In practice, there are many Prime Minister’s. For
the members of the party in coalition, their leader is their prime minister. However, in
practice, it is not necessary. It also depends on the personality and the skills of the person.
 For example, NARASIMHA RAO could run the minority government and could take critical
policy decisions like LPG, Look East Policy, and Panchayat etc.
 Similarly, VAJPAYEE became the first PM to ensure that coalition complete its term. Even
Manmohan Singh could manage the 1st term, but he could not manage the 2nd term. At
present, coalition government at centre is just a formality. BJP itself has absolute majority.
Hence, it is obvious that the position of prime minister will get strong. Along with the position
of party, the charisma of Modi has tilted balance of power back. Thus, the institutions operate
in an environment and shaped by multiple factors.
 The Systems approach and Neo-institutional approach can be analysed to study the institution
of Prime Minister
6. NARENDRA MODI
As PM Modi possesses the strong personality, he has given a new dimension to the institution to
the extent that scholars often warn with the dangers of the growing personality cult in India’s
democracy. According to P.B Mehta, rise of colossal stature of a single leader might be
detrimental to the future of democracy. However, according to a LSE Study, the emergence of
PM Modi as a phenomenon is not just because of his personality but also because of lack of
credible alternative. He has changed the political landscape which is moving out of party politics
and gravitating towards charismatic figures. At the same time, it is essential to understand that
Indian political parties have never been strongly ideological. Modi’s success is also attributing to
the organizational strength of RSS along with his personal charisma articulated through the
agenda of anti-corruption and “Vikas”.
In a recent book edited by Ugo Tramballi and Nicola Missaglia, titled “India : The Modi Factor
”,Modi is a man who promised “Reform , Perform , Transform”. According to them, India is
certainly in “Modi era”.

STATE EXECUTIVE

GOVERNOR

Questions:
 The office of governor has turned controversial in the recent times leading to deterioration in the
centre state relations. In this regard, examine the need for reforms with respect to appointment
and removal of governor

ANALYSIS OF ROLE OF GOVERNOR

The office of governor has become so controversial that many scholars recommend the abolition of
the post. Hence, in order to understand the reasons behind controversies and whether the post should
be abolished or not we have to understand –
 The constitutional perspective using Legal- Institutional approach or provision
 How the institution has evolved using systems approach?
As per Article 154, the executive power of the state is vested in governor. Since, India has adopted
parliamentary form of government even at the state level, dual executive is needed. Like President
at union, governor represents the nominal head India has also adopted cooperative federalism –
 The two levels of government are not entirely independent
 Centre has the stronger position

According to Sarkaria Commission, Governor is the lynch pin in cooperative federalism.

What important role governor plays? (In cooperative federalism)

 He acts as a bridge between two levels –
 As a representative of state, he keeps centre informed about the perspective of the state
 As a representative of union at the state, he has to bring national perspective at the state
level
 Governor acts as an eye and ear of the union at the states. Considering the secessionist trends,
governor has to keep union informed about the developments in the state,
 Under Article 356, on receiving the report of governor, union can impose president rule in the
state
 Instead of acting as a lynch pin of cooperative federalism, governor have acted as a bargaining
tool. Governor is the long arm of the union with iron fist in the velvet gloves

Why governor position becomes controversial?

At the heart of the controversy is a discretionary power of the governor. As per Article 163(1), there
shall be a council of ministers headed by Chief Minister to aid and advice the governor except where
under the constitution, governor is required to act in his discretion, for example, reserving a bill for
the consideration of president. Article 201 – reservation of a bill; Article 356 – Presidential rule
As per Article 163(2), whether governor should have used his discretion or not cannot be questioned
and when he will use his discretion or not is also his discretion

Whether discretionary powers go against constitutionalism?

According to Punchhi Commission, discretionary powers do not necessarily imply the dilution of rule
of law. There can be circumstances where discretion is needed. However, discretionary powers cannot
be exercised in an arbitrary manner.
According to Punchhi Commission, the area of discretion of governor is limited even in the limited
area choice cannot be arbitrary. It should be dictated by reason, tempered by caution and acted in
good faith.
Supreme Court in NABAM REBIA Vs STATE OF ARUNACHAL PRADESH (2016) has reiterated the
approach of Punchhi Commission. SC held that the exercise of discretionary power by governor is not
beyond the scope of Judicial Review

Case studies on the use of discretionary power:

1952: The then Tamil Nadu Governor T PRAKASHAM, instead of inviting the communists who had
largest number of seats, invited C Rajagopalachari of Congress to form the government
1956: The first misuse of Article 356, when communist government of Kerala was dissolved without
any valid reason

1984: Governor of Andhra Pradesh dissolved the government on the ground that Chief Minister (NTR)
was abroad for his medical treatment

1988: UP Governor ROMESH BANDARI dissolved KALYAN SINGH government without giving
opportunity to prove his majority and made JAGDAMBIKA PAL as Chief Minister. It has led to the
intervention by Supreme Court which ordered composite floor test. In the floor test JAGADAMBIKA
PAL lost the majority

2006: Governor of Bihar, BUTA SINGH dissolved the assembly immediately after elections. It has led
to the intervention of SC and SC held that without conducting the first meeting assembly cannot be
dissolved

2016: Governor of Uttarakhand dissolved assembly a day before CM was asked to prove his majority.
He took the decision on the basis of “STRING OPERATION” reported in media that CM has offered
bribe to MLA’s

2016: Governor of Arunachal Pradesh preponed the session of the assembly.

2017: Goa Governor: In the election, congress and NCP had 18 seats, just 3 short of majority
and BJP had 13 seats with the remaining 10 seats to other parties. Governor invited BJP rather
than inviting the single largest party. Matter went to the Supreme Court. CJI Kheher advised
congress to hold dharna before the governor rather than approaching the court.

Manipur Governor: In Manipur assembly elections 2017, congress got 28 seats, BJP got 21
seats, governor invited BJP, BJP was alleged to gain the support of others by offering 7 out of
11 cabinet seats to other parties leaving only 3 seats for BJPs own MLAs who decided to quit
the party and align with the congress resulting into loss of esteem for law in a sensitive state.
2019: The swearing in ceremony of Devendra Fadnavis and Ajit Pawar took placed without any kind
of public notice

There are numerous other examples related to the controversial role of the governor, for example,
the government of west Bengal has been consistently complaining about excessive interference in day
to day functioning. SHIV SENA has filed a petition against governor’s conduct in Maharashtra. There
has been controversies related to Governor of Rajasthan, Karnataka, Madhya pradesh etc almost all
involving judiciary. Above analysis show that irrespective of the party; all governments at union have
misused the institution.

Apprehensions raised:
 Political manipulation
 Independency and autonomy compromised

What allows union to misuse?

The system of appointment and the removal

System of appointment:
Constitution mentions only two qualifications:
 Citizen of India
 35 years of age
Governor is appointed by a president which means PM. There was apprehension even in the
constituent assembly. Pt. Thakur Das Bhargav tried to bring the attention of Pt. Nehru. Pt. Nehru
assured that only eminent persons with no active political background will be appointed

Actual practice:
 Spoils system has been introduced
 The post of governor became the rehabilitation post for the politicians losing elections
 Persons with active political, administrative and judicial background have been appointed

What is to be done?
 Instead of leaving the qualifications on conventions, they should be codified
 As suggested by RAJA MANNAR COMMITTEE of Tamil Nadu govt., prior consultation with the
CM of the concerned state should be done
 As suggested by PUNCHHI COMMISSION, the best platform will be inter-state council

System of removal: Governors do not have security of tenure; they are at the pleasure of president
(which means Prime Minister)

Opinion of Supreme Court: B P SINGHAL CASE (2010)

 There is no need to end pleasure doctrine
 There is no need to give governor any opportunity to be heard. Ordinarily governors should
be allowed to complete their term
 Just because governor has a different political ideology, it cannot be the basis to remove
governor

Way forward: Though there are suggestions to abolish the post, there has been huge resentment with
respect to the misuse from different states, for example, Jammu and Kashmir. Yet according to
Punchhi Commission, the post of governor has assumed greater importance. In the context of
increasing internal security threats and events like communal violence, however, the union
government should resist from the misuse of the institution

VIEWS OF SOLI SORABJEE

“The Governor, Sage or Saboteurs”, There is no other institution which has become so much
controversial. He suggests that governors can do great good if they are good governors. They can do
great harm if they are bad governors. This shows that the role of governor is critical like a lynch pin.

VIEWS OF SEEMA CHISTI

In her article suggests that the role of governor has assumed the centre stage, we cannot afford to
continue the institution which appears – VESTIGE OF THE COLONIAL PAST

FORMER PM MANMOHAN SINGH

He gave four mantras to the Governors:
 You are the sole judge of what is right and wrong
 You have to see what is in the best interest of the country
 You have to understand the mandate of the constitution
 You have to understand what people expect from you

VIEWS OF SUPREME COURT ON THE CONSTITUTIONAL STATUS OF GOVERNOR

HAR GOBIND PANT Vs RAGHUKUL TILAK (1979)

The verdict was given by constitutional bench with unanimity
 It is a constitutional office of dignity
 Just because union government has a power to appoint and remove, he is not an employee
of union
  Governors discretion is governor’s discretion and not union government discretion
 Governor is not answerable to the union for the manner of exercise of his powers

RAMESHWAR PRASAD Vs UNION OF INDIA (2006)

 SC express the concern over state of the institution
 Office of governor is office of dignity
 Governor takes oath to serve the people of state and not union government
 There is no absolute immunity to the action of governor under Article 361

S R BOMMAI CASE
 Floor test within 48 hours
 Role of governor: Governor should act in impartial, neutral and unbiased manner and the need
to promote the spirit of cooperative federalism
 Need of office of governor post: India is facing multiple problems like poverty, internal security
threat, climate change etc. Hence, there is need for effective coordination between centre and
states

OFFICE OF GOVERNOR: CONSTITUTIONAL PROVISIONS

 Article 153-167: State Executive-Governor, Chief Minister, Council of Ministers and Advocate
General of the State
 Article 153: Governor to act as constitutional head of the state. Represents the centre at the states
and represents the state at the centre
 Article 163: Governor required acting upon advice of Council of Ministers (COM) head by CM.
However, at the same time Article 163 provides certain exceptions, wherein the office of governor
can also exercise some discretionary powers (“controversial”)
 7th Constitutional Amendment Act: Appointment of governor for two or more states

DISCRETIONARY POWERS OF THE GOVERNOR

 Give assent or withhold the bill passes by state legislature

 Refer the bill for presidential assent under Article 200
 Appointment of Chief Minister under Article 164
 Dismissal of the government which has lost confidence but refuses to quit
 Governor’s report under Article 356

Appointment: Article 155: Appointed by the president

Constitutional provisions:
 Citizen of India
 Above 35 years

Conventions
 He should be an outsider
 Appointed by the president in consultation with the Chief Minister

REMOVAL
Article 156
 Governor shall hold office for a term of 5 years
 Governor shall hold office during the pleasure of the president
 Tender his resignation letter to the President

REFORMS NEEDED FOR THE OFFICE OF GOVERNOR

Reforms with respect to the appointment:

1. Sarkaria Committee:
 Eminent persons in some of the walks of life and person outside the state
 Detached figure and not intimately connected with the local politics
 Person who has not taken too great a part in politics in general and particularly in the recent
past
2. Punchhi Committee:
 Phrases like “Eminent”, “detached figure” are susceptible to multiple interpretations
 Adopt script guidelines for the appointment

3. National Commission to Review the Working of the Constitution (NCRWC): Governor to be

appointed by a committee comprising of PM, Union Home Minister, Speaker of Lok Sabha and CM of
the concerned state

Reforms with respect to the removal:

1. Sarkaria committee: Ensure that governor is not removed prior to the completion of tenure
2. Punchi Committee:
 Phrase “during the pleasure of president” may be deleted from Article 156
 Impeachment of governor on the same lines of impeachment of the President by the
Parliament

Sarkaria and Punchi Commission – laid down guidelines

 Parties or comb of parties with widest support
 Pre-poll alliance or coalition
 Group of parties with had pre poll alliance and largest number
 Single largest party
 Post electoral coalition
 Post electoral alliance

If above 1 and 2 does not work, then floor test in 48 hours – according to S R BOMMAI CASE.

UNION PARLIAMENT
Questions:
1. What do you mean by the decline of parliament? Give reasons for the decline and suggestions to
arrest the decline.
2. Do you think it is high time that India should move towards direct democracy?

What is the role of parliament in Indian Political System?

Since India is a parliamentary form of government, theoretically speaking parliament is a centre of
gravity in the political system. If we go by theory of government given by John Locke, legislature is the
most important institution because it represents the people.

WORKING OF THE PARLIAMENT

There is no doubt that there is a huge dissatisfaction with the performance of parliament. Parliament
has a central role in the governance of the country; it is a key institution to formulate policies, laws,
to ensure the accountability of executive.

Pratap Bhanu Mehta and Devesh Kapur in their article – “Indian Constitution as an Institution of
Accountability” has provided the critical review of the working of parliament in India.
What is their observation?
There is a palpable decline of what Pt. Nehru termed as “THE MAJESTY OF PARLIAMENT”.
With much of parliament’s time wasted on rowdiness, disorder, theatrics, there are serious concerns
about the dysfunctionality of the parliament. While the unparliamentarily behaviour of MP’s has
undoubtedly robbed parliament of its mystique which is the basis of its authority, the weakness of
parliament stems from multiple factors both within and outside the institution. However, they

mention that much of the problem is its own making.

One of the earliest scholarly works on Indian Parliament is attributed to Morris Jones.

Theme of the book: The functioning of Indian parliament cannot be disassociated with the quality of
parliamentary democracy in the country.

Morris Jones was apprehensive of the success of parliamentary democracy in India. He gave following
reasons –
 It is not an indigenous institution
 The scale of diversity in India
 The social cleavages which are bound to increase and are bound to make Indian politics
adversarial politics

We can trace the origin of modern parliament to Indian Council Act, 1861. Indian Council Act 1909
introduced representative element, 1919 and 1935 tried to introduced the element of accountability,
though the reforms at provincial were more liberal than that the centre.
After independence, Indian adopted bicameral legislature. Lok Sabha as the representative of
people and Rajya Sabha in dual role –
 As a house of elders and as a chamber of revision
 As a council of states representing the federal nature

Parliament is given following tasks –

 Formulation of laws
 Platform of deliberation
 The supreme institution of accountability

Parliament has an elaborate set of institutions, mechanisms, procedures to fulfil its obligation. Since,
India has parliamentary form of government much of the lawmaking is under the executive. The
primary role of parliament becomes accountability.
 There is an elaborate institution of committees; the three financial committees are
complemented by the departmental standing committees
 The members of parliament have power to ask questions, bring motions and resolutions
  In order to ensure, the dignity of the parliament –
 Parliament has power to punish for its contempt
 There is a prohibition on judicial interference in the internal functioning of parliament
 Members as well as house enjoys privileges
 In Indian system, accountability of the government is met at two levels –
 Through the members of parliament
 The accountability of MP’s to the people in the elections

Working of parliament
Parliament does not operate in vacuum; it gets influenced by multiple factors. Since, we are living in
the increasingly connected world; Indian parliament is not immune to the global processes. However,
the most important determinant of the working of parliament is the party system. The working of
Indian parliament is tangled in the dynamics of party politics.
Subhash Kashyap in his book “Reviewing the Constitution” has also mentioned that Indian
parliament is passing through the phase of decline. He believes that following factors are responsible
for decline –
 The information explosion, technological revolution, the growing magnitude and complexities
of modern administration, the welfare state puts enormous responsibilities and challenges
 The presence of archaic practices, time consuming procedures, lack of expertise, inadequacy
of time, results into poor quality of legislations and unsatisfactory surveillance of the
government
 Little effort has been made to develop essential pre-requisites for the success of
parliamentary political system i.e. discipline, character, sense of public morality, ideologically
oriented party system, willingness of the government to accommodate minority views,
constructive opposition

Thus, a cynicism exists towards parliamentary institution; there is erosion in the respect of
parliamentary processes as well as parliamentarians.

Pratap Bhanu Mehta and Devesh Kapur has discussed the following weaknesses of parliament in
India:
 The biggest cause of decline is the increase in the number of persons coming from criminal
background (43% of MP’s in the present parliament)
 Globalisation has taken away much of the autonomy as far as policy making is concerned
 Globalisation has also increased the complexities in the formulation of laws. In the absence of
adequate training and capacity building programmes, it is difficult to expect the qualitative
outcomes
 Political parties also do not select the persons on the basis of parliamentary skills, winning ability
is the criteria. The trend is that most of the MP’s turn out to be first timers. Hence, we miss the
benefit of experience. Same is the problem in committee system, members are appointed for a
year
 There is a decline in the significance of Rajya Sabha. Since, there is a possibility of Rajya Sabha
being dominated by the parties other than the party in the government. Rajya Sabha tends to
block the legislations and most of the time not on the basis of principles. It resulted into the
attempts by government to bypass Rajya Sabha either –
 Through ordinances
 Presenting even ordinary bills as money bills
Though Rajya Sabha is supposed to be the house of elders, however in India, there is hardly
any difference in the composition of the two houses. In fact, the Rajya Sabha is worse as it has become
a rehabilitation chamber

Working of the committee system

  Committee system exhibits the overall weakness of the parliament. Since, there is no
additional payment, there is no motivation among MP’s towards their work in committees.
 There is a lack of cooperation from the ministry because in all crucial committees – ministers
cannot be the members.
 Reports are either not laid on the table of the house or they are not discussed and they are
not implemented
 Departments are reluctant to provide information in time to CAG

Institution of speaker
Institution of speaker has become controversial. Controversies have increased since the introduction
of anti-defection law where the speaker gets the power to disqualify MP’s. In India, devices like no
confidence motion have been used less as tools of accountability, more as a tool of bargaining.
According to PRS legislative research, the number of oral questions has declined. Earlier it
used to be 20 per day, but now it is 15. 10-20% of the time is consumed in adjournments. The average
time of the work is getting reduced. Earlier it used to be around 170 days per year. But now it has
reduced to 70 days. According to NCRWC (National Commission to Review the Working of the
Constitution), at least parliament should meet for 120 days.

Another scholarly work on Indian Parliament is done by Shankar and Rodrigues in “THE INDIAN
PARLIAMENT – DEMOCRACY AT WORK”. They have highlighted following factors responsible for the
decline of parliament:
 The breakdown of Congress system
 The growth of criminalisation and money power in the election
 The rise of regional parties and coalition government
 Absence of electoral reforms
 Plebianisation of Indian Democracy

World Bank has given six parameters to evaluate the working of legislative bodies –
1. Financial: Since Parliament is the supreme institution of financial accountability, it is
important to see their accountability in context of cost to the country. For a poor country like
India, Parliament hardly justifies the constitution. On an average, it costs 6 crore rupees per
day, 2.5 lakhs per minute (2012). It has now become 9 crores per day.
2. Compliance: Parliament makes law for the entire country. Hence, we have to assess how
much do they comply with the rules of conduct which they make for themselves. It was not
an exaggeration to say that Parliament in India has become “chamber of anarchy”
3. Efficiency: Efficiencies to be measured in terms of quality of work, time invested and cost
involved
4. Effectiveness: Effectiveness is measured in terms of the presence felt in the country
5. Relevance: Relevance is measured in terms of qualitative improvement the institution brings
in quality of life of citizens
6. Sustainability: Measured in terms of respect

WAY FORWARD

Views of Subhash Kashyap

Deliberate and concerted efforts are needed to build the image of parliament. Parliament should
consistently review its structural and functional requirement to protect itself from putre faction and
decay. Among the reforms suggested were – the foremost is to reform the party system. Improve the
quality of members reduce the financial cost, capacity building, codify parliamentary privileges, tackle
absenteeism – they should be penalised

JUDICIARY
What is the envisaged role?

According to Pandit Nehru, Judiciary in India will not play a passive role. It will be an active participant
in India’s social revolution. Hence, judiciary also comes under definition of state in Article 36, it means
if parliament and executive do not go ahead with the implementation of directive, judiciary can step
in and direct the executive to give effect to those principles.

According to Bikhu Parekh, India presents the classical example of judicial co-governance. Thus,
judiciary in India is not just a body for resolution of disputes; it has a role in the governance. Even
Indian constitution permits judiciary to make laws. For example, under Article 141, the laws declared
by Supreme Court shall be binding on all courts.

THE NATURE OF THE INSTITUTION OF JUDICIARY IN INDIA

India has an integrated judiciary. Supreme Court is at the apex. Indian Judicial System is often
called as “Top Heavy”. Supreme Court is at the apex of the judicial system. There is no other authority
over and above Supreme Court. Only Supreme Court can review its judgement (Article 137).

Supreme Court not only has a huge mandate; it also has enough powers.
1. Supreme Court is a court of record. The court of record has power to determine its jurisdiction. It
can also punish for its contempt (Article 129)
2. Supreme Court has been given power to do complete justice (Article 142). In case, where Supreme
Court feels that the law is not sufficient to do the justice, it can complement the law.
3. All civil and judicial authorities within the territory of India have to act in aid of supreme court
4. Supreme court is not bound by its own decision

What is the envisaged role of Supreme Court?

 Protector of fundamental rights
 Thus, it ensures the rule of law. It checks the arbitrariness on the part of government.
 Judicial Review is the basic structure. It ensures that democracy does not turn into “tyranny
of majority”
 Supreme court is also a guardian of federalism

Review of the working of Supreme Court

In recent times, Supreme Court comes under the scrutiny of academic community. Some of the recent
works include “Supreme but not infallible: Essays in the honor of Supreme Court of India” edited by
B N KIRPAL and “The shifting scales of justice: The Supreme Court in Neo-Liberal India” edited by
MAYUR SURESH and SIDDARTH NARAYAN have analysed the evolution of Supreme Court in three
phases –
1. Up till 1977: This was the phase of supremacy of executive. They called courts performance was
far from satisfactory and dismal during emergency. The judges completely buckled under
government pressure. Judiciary flatly refused to protect the rights and liberties of citizens. For
example –
 A K GOPALAN CASE – where Supreme Court took the side of the government. Supreme
Court allowed the dilution of FR’s (Champakam Doria Rajan case, Shankari Prasad case)
 In 1967, when judiciary came forward to protect “Right to Property”, it was criticised for
‘negative activism’
 Supreme court’s judgement in Habeas Corpus case is called as “Darkest Hour of India’s
Judiciary”
2. From 1977-1990: The court desperately searched for the ways to redeem its reputation. It
started the unorthodox approach of protecting the rights of marginalised sections by supporting PIL’s.
Judiciary has also taken steps to fill the gap because of in activism of the other two branches of the
government

3. 1990’s onwards: Since 1990’s we see a reversal in a trend. Instead of protecting the rights of weaker
sections, judiciary started protecting the rights of corporate and the dominant sections. Judiciary
started taking the professed developmental narrative without critically examination. For example, in
OLGA TELLIS CASE, Supreme Court held that the pavement dwellers cannot be simply evicted.
However, in the year 2000 in ALMITRA PATEL Vs UNION OF INDIA CASE, Supreme Court compared
homeless with pick pockets. In mid-1980’s court came in protection of environment, but later on curt
started giving preference to the rights of MNC’s like VEDANTA over environment as well as the rights
of tribes. Court has not been willing to intervene in the large water projects like SARDAR SAROVAR.
Above analysis show that judiciary in India has been influenced by the socio-political environment in
the country.

Pratap Bhanu Mehta in his article – “INDIAN JUDICIARY – THE PROMISE OF UNCERTAINITY” has held
that the Indian Judiciary is a highly politicised and self perpetuating institution

Views of Pratap Bhanu Mehta:

 Pratap Bhanu Mehta is sceptical with respect to the functioning of judiciary
 Skeptical – despite having a very highly activist judiciary, benefits have not
been translated on ground
 He considered judiciary as highly politicised
 The approach of judiciary has been shaped by political circumstances. Judiciary sense the
political mood and give the judgments

What is the outcome of it?

Promise of uncertainty: It means supreme courts judgements can keep on changing in a short span of
time. According to him, the judgments do not reflect as if they are based on any overarching idea.
They appear artifacts of individual judges (allocation of benches) He calls judiciary as a self-
perpetuating institution. It means it increases his power vis-à-vis other to branches of government in
the name of activist. Judiciary plays its card intelligently. It has been successful in building its image

Views of Upendra Bakshi

Upendra Bakshi believes that Pratap Bhanu Mehta is unfair to the judges. Upendra Bakshi gives the
credit to judiciary in strengthening the rights of the marginalised section (demos prudence). He also
suggests that Judiciary has done Chemotherapy of carcinogenic politics of India

Current trend
 During coalition era, the balance of power has shifted towards judiciary. However, with the
coming back of strong majority government at the centre, the power shifted back in the hands
of executive
 Initially, there were conflicts between judiciary and government. For example, with respect to
the appointment of Gopal Subramanyam as a judge of Supreme Court, whose appointment
was stalled by the government; another conflict arose over NJAC (National Judicial
Appointment Committee) where judiciary struck down 99th constitutional amendment act and
asserted judicial independent as a basic structure. Judges express their concern over the
executive stalling the process of appointment. There was disagreement between government
and judiciary over memorandum of procedure. However, gradually judiciary and executive
found “modus vivendi” (terms and conditions for togetherness). However, at present it seems
that coziness between the executive and judiciary has grown. There have been some
judgements which have become controversial. For example,
 The rejection of the petition filed by ROMILA THAPAR in Bhīma Koregoan case, where filed
social activists (Gautam Navlakha) were arrested on the ground of unlawful activity and
branded as urban naxals.
 Judiciary has turned down the request for an independent role in case of death of justice
Brijgopal Harkishan Loya.
 Judiciary’s decision to up held the validity of AADHAR ACT as a money bill
 According to Supreme Court Lawyer DUSHYANT DAVE, the relation between the two branches
of government should be cordial, yet formal, cosiness is not expected
 A/c to MANISH CHIBBAR, the separation between the church and the state is getting blurred
resulting into the question of credibility of judiciary
 A/c to MANU SEBASTIN, judiciary appears tentative, fragmented, vulnerable and fearful of
hearting the might of the executive

WAY FORWARD
It is said that we cannot imagine the amount of darkness, if the lamp of justice is gone. In Bible, it is
mentioned that “You are the salt of the Earth”. If salt loses its savour from where the earth will be
salted. Hence, with respect to judges we can suggest only one thing – “Sunlight is the best
disinfectant”.

Judiciary plays a very critical role in the governance; there are studies which show the direct relation
between efficiency of the judicial system and rate of the economic growth. It is also said that there is
no better test of the excellence of the government than the functioning of its judicial system. Indian
Judicial System is in the need of urgent reforms –
1. Restore the credibility of the institution which has suffered a significant amount of decline
2. Indian system is notorious for excessive delays. More than 3 crore cases are pending.

Economic Survey 2019 has highlighted the huge pendency in sub-ordinate court, which may result into
the situation of “Matsya Nyaya” Government, Judiciary, Civil society, Bar Associations have to walk
together to address the huge pendency of cases.

It is also important that justice should be made accessible to the weaker sections. Indian Judicial
System is heavily tilted towards the rich. The regular training and capacity building of the Judges are
needed. Not only has the quantity of judgements but quality of judgement also mattered. An urgent
area of reform is the system of appointment of the judges. Still it is difficult to hold judges accountable.
Hence, govt. may nrethink to introduce judicial standard and accountability will

JUDICIAL ACTIVISM

What does the term “activism” denote?

 Activism denotes high energy state
 It means jumping into orbit of others

Is activism related to judiciary?

 No
 In India, we have seen activism of Executive, Election Commission, CAG, President, Civil society,
Media etc.

How to describe judicial activism?

 When judiciary starts intervening in the work of other two branches of going beyond
constitutional mandate
 For example, Judiciary enters into domain of policy making, it also enters into domain of
execution

What is the difference between Judicial Activism and Judicial Overreach?

 Those actions which appear desirable are activist, whereas which appear undesirable are
overreach. However, it is very subjective in nature

What is judicial adventurism?

 It is quite similar to overreach. It is like entering in uncharted water

What is judicial high headedness?

 When judiciary used its power like power to punish for its contempt in a way that does not
appear democratic

What is the relation between Judicial Activism and Judicial Review?

 Judicial Review is not activism but it provides the basis for activism
 If Judiciary refrains from doing the review, we will call it passive judiciary
 If Judiciary not just tell the validity of law or executive action, but also prescribe law and actions
it becomes activism

What conditions gives rise to judicial activism?

 If a country has written constitution
 If it has system of fundamental rights
 If it has federalism
 If other two branches are either passive or go for overreach
 It can be preference of judges
 It can be preference of the people
 Global trend

EVOLUTION OF JUDICIAL ACTIVISM IN INDIA

Evolution can be seen in context of evolving political climate in the county –

1. Golak Nath Case (1967): First case of Judicial activism coinciding with breakdown of Congress
2. Keshavanand Bharati Case (1973): Another attempt of judicial activism, however, later on
judiciary reiterated. For example, Habeas Corpus
 3. Menaka Gandhi Case (1978): As the credibility of legislature as well as executive suffered,
judiciary expanded its base

Judiciary, under the global trends instituted PIL

Judicial activism reached to its extreme during the phase of coalition government –
a. Judiciary entered into the restricted domain. For example, S R BOMMAI CASE (1994) –
brought the decision of President within the scope of Judicial Review. KIHOTO HOLLOHAN CASE –
Judiciary brought the decision of speaker under anti defection law within the scope of judicial review
b. Judiciary went in the domain of policy making in a big way. For example, directed govt. to
implement inter-state river linking project, in 2G spectrum case directed that the only policy for
allocation of natural resources will be auctioned

Whether Judicial Activism is desirable or not?

There are two schools of thought:
1. Traditional school – Justice Lord Jowett
 They believed that the role of judge is to tell the law and not to make law
 Judiciary does not have the expertise and the capacity to manage administrative leviathan
2. Contemporary view – Justice Stanley Forman Reed of USA, Justice Krishna Iyer and Justice P
N Bhagwati
 Gone are the days when it was seen indecent for judges to make laws. Whenever law is told,
law is need
 If judges do not do activism where it is needed it means they want to live in comfort away from
public criticism
 In case of Indian Judicial Activism proof to be a blessing in disguise. However, Pratap Bhanu
Mehta feels that there is no concrete achievement. On the other hand, Upendra Bakshi
believes that Pratap Bhanu Mehta is unfair

On Ranjan Gogoi:
 Justice Gogoi’s actions are not simply a case of one bad apple
 His actions will now cast doubt on the Court as a whole; every judgment will now be attributed
to political motives
 Justice Gogoi’s track record as justice was to take a wrecking ball to the Indian Constitution
and smash it to smithereens
 In doing so, he has not just cast doubt on his own judgement, character, and probity
 He has dragged down the entire judiciary with him
 He was more executive-minded than the executive in corruption cases
 His reasoning in the Ayodhya case was infinitely worse than the Allahabad High Court

Note:
 Legitimacy of Supreme Court is on question
 The authority of the Supreme Court of India rests squarely on two things:
 The Cogency of its reasoning and
 The Integrity of its judges

On Judiciary:
 The very fact that a judge accepts such an appointment could cast doubt on his judgements. It
would signal that the judiciary is not independent, but lives for crumbs thrown by the executive.
 Think of the number of potentially interesting justices whose careers have been derailed by mere
implications, most recently –
 Justice AP Shah and Gopal Subramaniam.
 Arbitrary transfer of Justice S Muralidhar.
 Now set Justice Gogoi’s nomination to the Rajya Sabha against this background.
 “We live in an era where integrity and innocence can be destroyed by a mere whisper”

Justice Gogoi’s actions say to us: The Law will not protect you because it is compromised, the Court
will not be a countervailing power to the executive because it is supine, and Judges will not empower
you because they are diminished men

PRATAP BHANU MEHTA his article” a shape shifting justice” has criticized SC decision for putting on
hold the laws passed by the parliament without substantive hearings on content of laws. He suggests
that this is a monumental irony as it acts as an arbitrator of the government.

Supreme Court’s action to appoint a four member committee to resolve the deadlock has come under
criticism been because the members have been in favor of farm laws.

OTHER CONTROVERSIES
1. Shaheen bagh protest: (Amit sahni vs commissioner of police & oth.) SC held that democracy
and dissent go hand in hand but dissent has to be in designated place. According to the critics,
there was no factual basis of the argument that the protest is blocking the public way and
causing great inconvenience to the commuters.
2. Controversy over SC’s Response in Migrant crisis: unilaterally accepting the claims of Central
Government on the migrant’s problems without verification.
3. SC came under criticism Siddique Kappan case where the journalist was arrested by UP police,
while on the way to report gang rape and murder in hathras. When kerela union of working
journalist approached to SC for issue of writs under article 32, SC held that matter should be
transferred to high court in UP, on the other hand, in case of Arnab goswami case, SC has
granted intrem bail at earliest.
4. In central vista project, SC has transferred the case to itself from delhi highcourt thought the
petitioner didn’t asked for it.