BY : B.R.Taneja
The question that I often ask myself is this: Would our democracy withstand scrutiny if tested against the classical principles of what a democracy ought to be?
Over the years, I have read numerous articles and papers written by constitutional scholars, political commentators, and public intellectuals. Yet, I have rarely come across a serious discussion on whether certain structural features of our Constitution have weakened some of the fundamental safeguards traditionally associated with democratic governance. This question deserves closer examination.
To begin with, it is important to understand what is meant by democracy and the principles on which it is founded.
The roots of democracy can be traced to ancient Athens, where political participation by citizens first took organised form. Aristotle, writing in the fourth century BC, analysed different systems of government and the distribution of political authority. Centuries later, the French philosopher Montesquieu gave formal expression to what became known as the doctrine of the separation of powers.
According to Montesquieu, political authority should be divided among three independent branches—the legislature, the executive, and the judiciary. The objective was to prevent the concentration of power in any one institution and thereby safeguard liberty. The doctrine rests on the principle that government should function according to law rather than according to the will or whims of those who temporarily hold power.
A particularly important feature of this doctrine is the independence of the judiciary. Courts must be free from undue influence by either the executive or the legislature if citizens’ rights are to be effectively protected.
The theory of separation of powers strongly influenced the constitutional developments that followed the French Revolution. Article 16 of the 1789 Declaration of the Rights of Man and of the Citizen famously declared that a society in which the separation of powers is not assured has no constitution.
The doctrine also exercised a profound influence on the Constitution of the United States. The American system distributes legislative authority to Congress, executive authority to the President, and judicial authority to the Supreme Court and other federal courts. While the branches are linked through checks and balances, they remain institutionally distinct. The American model is often regarded as one of the clearest examples of separation of powers in practice.
The significance of this doctrine lies in its ability to prevent excessive concentration of authority. By ensuring that no single institution exercises unchecked power, it seeks to protect democratic freedoms and constitutional government.
Let us now see how we operate in India. We are a unique country, not bound by what others have theorised, irrespective of its enormous usefulness and value in the governance of the state. It is claimed that we follow the separation of functions rather than the separation of powers. We have completely done away with the concept of separation of powers, considered absolutely essential for a country to be called democratic. In other words, we have no claim to be called a democratic country. We must thank our stars for at least separating the functions of the different organs of government; otherwise, we would have had the judiciary doing the job of the bureaucracy and legislators indulging in judicial functions, and so on.
Under the circumstances, we have to choose what we should call our governance model. Should it be a defunct democracy, a so-called democracy, or an autocracy? It is left to you to decide.
Most Indian commentators talk about the checks and balances in place in the Indian Constitution that supposedly make the separation of powers unnecessary. The author has gone through some of these provisions that are claimed to protect against the misuse of power by the executive and finds them absolutely meaningless. As a matter of fact, if the basic design of governance does not clearly create a separation of powers, it is not possible to create enough checks and balances to prevent the executive from exceeding its powers and interfering in the affairs of the judiciary or the legislature. There is absolutely no room for a democratic country to do away with the separation of powers.
Let us now examine how we managed to land in this messy and unforgivable situation. This constitutional mess was clearly the work of the Drafting Committee appointed by the Congress government in 1948. Dr B. R. Ambedkar, the Law Minister at the time, chaired the committee tasked with drafting the Constitution of India. Going through those deliberations has proved rewarding in understanding why, after more than 75 years, we are still seeking answers to the question: how and why have we ended up with a defunct democracy?
To begin with, the decision to adopt parliamentary democracy is itself questionable. There is no country in the world as large as India that has a parliamentary democracy. Only about ten countries have this type of government, and most of them are small or very small nations with relatively homogeneous populations. The majority of these countries were British colonies at one time or another. There is no country in the world as large as India, either in territory or population, and with such a heterogeneous society, that follows this model.
Most leaders of the Congress Party at the time had received higher education in Britain and were clearly predisposed towards the British system of government. It is indeed strange that one does not come across any substantial discussion on the presidential form of government or any other model practised elsewhere in the world. This is despite the fact that the Americans had chosen the presidential form of government precisely because they were a large country with, as in our case, a somewhat heterogeneous population. Most importantly, they were performing extremely well in every aspect of governance. They were, and continue to be, among the most prosperous countries in the world.
This predetermined bias continued during discussions in the Constituent Assembly. Suggestions made by some members were not even given a fair opportunity for discussion. One such member was Professor K. T. Shah, a highly learned man, an alumnus of the London School of Economics, a Liberal Democrat, and a socialist. He spoke passionately about the virtues of separating powers among the principal organs of the state. Despite his best efforts to convince the Assembly to establish a government free from corruption and nepotism, and one that protected the constitutional rights of the people both in letter and spirit, the entire idea was summarily rejected by the Chairman.
Article 50 places an obligation upon the State to separate the judiciary from the executive. However, since it falls under the Directive Principles of State Policy, it is not enforceable. Two reasons were given as to why the Assembly omitted to insert the doctrine of separation of powers explicitly into the Constitution. First, the founding fathers considered it too late to insert the principle because the Constitution had already been drafted – scandalous indeed. Second, since India was opting for the British parliamentary system, adopting the doctrine was considered unnecessary. This excuse is equally unconvincing because Britain has a Monarch, and the doctrine is effectively accommodated through that institution. Here, one sees a display of arrogance and deceit on the part of the Chairman.
In short, since the Chairman of the Assembly was himself a member of the executive government of the day, he wanted the executive to retain all powers. It was indeed a blunder on the part of the Congress government of the time to commit such a significant error. It is also pertinent to point out that our method of electing the President of the country is somewhat scandalous.
The task of the President is to serve as the head of the executive branch of government. The President is responsible for appointing judges, the Chief Election Commissioner and Election Commissioners, the Comptroller and Auditor General, the heads of various investigative agencies, and other independent constitutional authorities. These responsibilities assume that the President will be independent and not part of the government in power. The office requires the President to act as a sovereign authority representing all citizens and to perform these functions independently. Independence from the government is therefore central to the role.
Instead, we have made the President virtually a part and parcel of the government in power through the manner in which the office is elected. The President of India is elected by an electoral college consisting of elected members of both Houses of Parliament and the elected members of the Legislative Assemblies of the States and Union Territories of Delhi and Puducherry. This effectively makes the President a part and parcel of the ruling political establishment.
This method of electing the President was adopted despite many dissenting voices in the Assembly. Professor K. T. Shah virtually pleaded with the Assembly to make the President a sovereign authority, much like the British Monarch. However, the Chairman considered direct election by all citizens to be impractical. He remained firm in his position despite serious concerns raised by many members. It is worth noting that the President of Ireland, operating under a similar parliamentary system, is elected by the people and possesses certain powers that make the office more meaningful. Why such a model was considered impractical for India is a question only Dr Ambedkar could answer.
Since our President is effectively part of the government and possesses virtually no powers whatsoever, the position appears largely meaningless. If the President is obliged to approve whatever is decided by the government, one may ask why the office exists at all, especially when it costs the exchequer close to ₹150 crore annually. Clearly, the position appears redundant.
This also creates a serious lacuna in the system and introduces significant distortions into the functioning of government. All agencies created by, or appointed through, the President and expected to function independently lose their independence in practice. The government in power effectively appoints these authorities and then secures the President’s formal approval. Consequently, these institutions are not truly independent. They become obliged to serve the interests of the government rather than the broader public interest.
If the Congress Party raises objections and alleges that investigative agencies are being used to intimidate the opposition, or questions appointments to positions such as Election Commissioner, Comptroller and Auditor General, or Director of the CBI, it is entirely within its rights to do so. However, it should also recognise that the Constitution permits such outcomes. The party must blame its own forefathers for having given us such a deeply flawed constitutional framework.
Had we adopted a presidential form of government, we would likely have had highly qualified and experienced individuals running the government in the post-independence era rather than individuals chosen from among legislators. Do we realise that nearly one-third of the legislators belonging to the ruling party are often placed in positions that amount to offices of profit?
As a matter of fact, this is one reason why people spend enormous – in fact vulgar -amounts of money to get elected. In a presidential system, this phenomenon is far less prevalent. Moreover, only those with a genuine desire to serve the public tend to seek election to legislative bodies. In our system, many people spend heavily to get elected in the hope that they will recover their investment by securing positions of power and influence.
With government being run by educated and experienced professionals over all these years, the author dare say that India might well have become a developed country by now – thanks to those who drafted our Constitution.
*The author, B. R. Taneja, is a Pune based industrialist.
