After having decided to adopt the Westminster Model of Parliamentary System for India, the task for the Constituent Assembly was now to tweak that System and make it suitable for India. The most important and critical modification was to replace the Crown (Monarch) of the UK – who is the symbol of the executive power and represents both sovereign (who possesses supreme authority on behalf of all the people of Great Britain) and the Government. The Crown is identified in the person of the sovereign but its functions are exercised by Ministers who respond to the Parliament. The Crown also is a significant part of UK’s Constitution having powers to appoint the judiciary.
The Crown is considered the source of all justice in the UK and has legal powers called the royal prerogative. All judgements are pronounced in the name of the Crown. Britain is thus a parliamentary democracy “governed by the Crown”. It is indeed not easy to replicate the British model. Sovereignty of the British Crown is to be seen as very important in exercise of power by the legislature, executive and judiciary and to remain independent. Since all the judgements by the judiciary are pronounced in the name of the Crown, it keeps the judiciary completely independent of the executive and the legislature.
While the Crown appoints the Prime Minister and other Ministers who collectively lay down the policies, the Crown has an important role in the appointment of civil servants and their promotions. The ‘Civil Services Commission’ is independent of Minsters and is appointed directly by the Crown under Royal Prerogative and reports annually to the Crown. In this process the bureaucracy is kept politically neutral keeping in mind the larger interest of the people and the nation. In following this tradition, the Crown also keeps the executives independent of other two branches of the government. The other arm of the government, the legislature, is in any case independent. This is how the British have kept the separation of powers well defined. The Civil Services Commission, keeps a watch, on behalf of the Crown, on how the civil servants are appointed and has control over their promotion which ensures their independence. Sovereignty of the Crown thus plays a very important part in keeping the three branches of the government working independently.
While there was near unanimity in the Constituent Assembly on the replacement of that position by a ‘President’, the process of selection/election for the position became a controversial issue and subject of intense discussion. Prof. K. T. Shah said that it is important that Head of the State should represent the sovereignty of the people. He further added that we have not decided the question of the residence of sovereignty in India as yet. He opined that the President of India would not be the Head of the Government, which position is held by the Prime Ministries of India. The President of India should be Head of the State (distinct from the head of the government) equal to the position held by the Crown in UK. He felt that true replacement of the Monarch will require our President to be a sovereign and therefore to be elected directly by all the citizens of India.
He added that the government must, as a rule, represent the majority party in the country. The government cannot be the true spokesperson of all the people of the country. The President, who is sovereign, should be a symbol of the people and must command respect and devotion from all the citizens alike. He should be able to stand between the people and the government when needed. The Irish government, for example, also adopted Westminster Parliamentary Model a little over a decade before us and also replaced the Crown by the President. However, they opted to have him elected directly by all the citizens of the country thus making him sovereign. The Chairman of the Committee (Dr B R Ambedkar), showed lack of interest in continuing with the deliberations on the subject by saying that the direct election of the President was not practical because of the size of the country’s population (which was close to 300 million with the number of voters close to 180 million or so at the time). He was of the view that the country does not have the wherewithal to indulge in having the President directly elected by the citizens of the country. It was indeed unfortunate that Chairman of the Drafting Committee disposed of such a vital question without considering the views of some sane voices on the matter.
A little over three years later, in 1952, the country had its first general election (with the same number of voters) without facing any problem of shortage of manpower, logistics, etc. proving him completely wrong. The Chairman further added that direct election of the President was not even necessary. Clearly, he was not in favour of the President being a sovereign. That’s how we have a President who gets elected by the electoral college comprising of the elected members of both the Houses of Parliament and the members of the States Legislatures. In other words, the President becomes a part of the government in power. By doing so, we have not only compromised the independence of judiciary but also the independence of our bureaucracy.
We have removed all the barriers that make the functioning of the three arms of the government independent. We negated all the Pundits, who strongly advocated in favour of keeping the functions of the three arms of the government completely independent for the proper and clean functioning of democracy. We have also limited the power of our President in respect of giving assent to the legislative bills. He cannot refuse to give his assent if the same is presented to him second time.
A lot people question the very purpose of having a President who does not add any value of any sort and yet costs the country hundreds of crores of Rupees every year – presiding over ceremonial functions to award achievers, hosting State Heads, and attending state functions and conferences do not justify the cost of keeping the office in a poor country like India. Ireland’s President, in contrast, is vested with power to refer the bills presented to him by the Parliament to the country’s judiciary and if the judiciary is not in favor of the bill, the President has the authority to reject the bill. He thus has the power and stature to stand between the people and the government.
We have no one who represents and speaks on behalf of all the people. We have deprived ourselves of the FOURTH LEG. We have done away with checks and balances that are necessary to avoid misuse pf power by a single person or vested interest groups. If we had an independent elected President, we would not have had the uncalled for and infamous emergency of 1975. To understand the loss of the independence of Judiciary one has to go through the various judgments pronounced by the Supreme Court in the past 75 years, particularly those which have gone in favor of the government.
Civil service is meant to implement the policies of the government in power and while doing so it is their duty to keep in mind the interest of the nation and her people all the time. In case they see clash of interest, they are supposed to be on the side of the nation and not on the side of the government. Since we do not have a sovereign, their position has been compromised. This is not all. We have also multiplied this problem further, by choosing to appoint Governors of the states by a non-sovereign (the President) on the recommendation of the Central Government and not by election. This has been indeed a misfortune. Similarly, we have also compromised the position of the Speaker of the Lok Sabha. He should not be having any allegiance to a political party post his election. While in the British system, the speaker once elected has to resign from his political party and be absolutely neutral. If he has to contest in the parliamentary elections after ceasing to be the Speaker, he has to do that as an independent under the label “Speaker seeking re-election”. In India, we have witnessed continuation of allegiance to the party that the Speaker belonged to before being elected to the job to and also seen ex-Speakers joining electoral politics as party candidates after demitting office, getting elected and becoming ministers. In the degradation that has happened over the decades in the parliamentary democracy of the country, the term neutral Speaker is an oxymoron. In fact, the acceptance of a speaker who seems to be with the party in power is well accepted and does not seem to disturb the electorate in any manner.
The India Independence Act 1947 passed by the British Parliament was: a) to divide the subcontinent into two countries – India and Pakistan; b) both to be dominions of the British Crown; and c) both countries to be given the choice to become democratic republic having their own Constitution. Till then, the Viceroy was to continue holding responsibility for foreign affairs and defense of the country. The transition from the Government of India Act of 1919, to Motilal Nehru’s report, to the Government of India Act 1935 and finally the India Independent Act 1947 were all centered on parliamentary democracy. On achieving independence on 15th August 1947, a Drafting Committee was appointed on 29th of August 1947 under the Dr B R Ambedkar as the Chairman and another 6 members namely K. M. Munshi, Syed Muhammed Saadullah, Alladi Krishnaswamy Iyer, N. Gopalaswami Ayyangar, B.L. Mitter (later replaced by N. Madhava Rao), K.M. Pannikar. This Committee was mandated to work on the provisional draft prepared by the Assembly’s Constitutional advisor, B. N. Rau.
It is indeed very strange that all the drafts and discussions in various fora were are all centered around Parliamentary Democracy. Complete absence of discussion or even a very mention of a competing form of democracy – such as the Presidential form – is intriguing if not scandalous. It is likely that this happened because most of the important people and opinion makers of the governing body of Congress Party were educated in U.K. They were in awe of Britian, the most powerful country in the world at the time, and its Parliamentary system. Another factor that, perhaps, explains the missing discussion on the Presidential form was because most members of the Committee were anti-American and having pro-Soviet disposition. Through the earlier stages, Communist Soviet Russia had made enormous economic progress wiping out poverty completely in a matter of just 15/20 years. These are the only explanations that can be given for the Committee having closed minds and unmindful or unaccepting of the availability of another choice. If only the Committee had looked around, they would have noticed that of the total close to 180 democracies in the world, only a very small group of 10 countries had the British system and these were earlier British colonies or were small countries having largely a very homogeneous population.
Final draft of Indian Constitution prepared by the Drafting Committee headed by Dr Ambedkar based on British System was thus presented to the Constitution Assembly for their consideration and approval. A small group of members were not in favor of instituting British Parliamentary system in India. Professor K. T. Shah, a very learned professor, alumnus of London School of Economics, a liberal democrat and having socialistic leaning, pointed out that the parliamentary government suffers from a sort of link between the executive, the legislature and the judiciary. In case we want a strong democracy, the doctrine of separation of power should be held intact. He stressed that British system has developed over a period of 700 years having unwritten traditions and has an un-elected Upper House (House of Lords). Also has the presence of a King who is an undisputed sovereign to guard against the misuse of power. In the absence of these checks and balances, it is not wise to adopt that system. Being a very poor country and having an uneducated population, our quality of legislators is not likely to provide educated and capable people with experience to lead our various government departments (ministries). The country will suffer enormously on this account. He added that India was a very large country with a lot of diversity in culture, languages, ethnicity who will all have their own ambition to grow while keeping their diversities intact. He was very categorical in his belief that in India, parliamentary democracy will lead to corruption, nepotism and abuse of power.
He was convinced that India must have Presidential form of government which will give sufficient independence for the various diverse groups to enjoy being part of large federal government and yet have the necessary independence to flourish and progress. It appears that most members had such a strong socialistic leaning and bias against American capitalism that they refused to even consider the Presidential form of government because they associated it with America. This speaks a lot about the general caliber of the members of the Assembly. Chairman of the Committee taking advantage of the situation of majority being in favor of the British style democracy, did not encourage any further discussion on the subject. The Assembly voted for having a Westminster Model of Parliamentary Democracy for the country. This is how we got wedded to a system that is totally unsuitable for our country. We have deprived ourselves of the freedom to pick up the best brains in the country to head the ministries. Instead, we chose to limit the choice of appointing ministers from out of the limited numbers of Parliamentarians – close to 40% of whom have criminal cases against them and with others having insufficient education and no exposure to what the challenges are in managing ministries.
The governance in the states is no different. Governors are appointed by the President on the recommendations of the Centre and the criteria for selection is ability to work on instructions of the Central Government and more so in states where a competing party is in power. The capability of the governor to obstruct the functioning of the state government is a major qualification for getting the job. One would have expected that our Supreme Court to intervene and lay down some guidelines and/or criteria for such appointments but, unfortunately, nothing of the sort has happened.
While Kapil Sibal, a member of the Rajya Sabha, calls our democracy as ‘derailed’, some others call it as a “hotchpotch democracy”. Whatever the name, there is no doubt that by compromising on the processes of elections of the President, we have created a structure completely different to what should have been for a smooth functioning of our parliamentary democracy. Look at all the ills and shortcomings we face today.
By adopting the British type parliamentary democracy, we have deprived ourselves of having highly educated, learned and experienced professionals available in the country to manage the government. The one reason of our having progressed slowly as compared to China is the difference in the quality of people managing the government. It is indeed an eye opener if one compares the caliber of the Indian ministers with that of China. As an example, the current Minister of Education in China, Huai Jinpeng, is doctorate in engineering.
In the presidential form, those who opt to become legislators do so because they want to serve the people and/or to be popular in the community or just for the thrill of being part of a highly respected small group of legislators of the country. Unlike in the parliamentary system, they do not have the possibility of gaining an office by unethical political manipulations or by jumping from one party to another – NO jumping jacks.
Since the President appoints the judiciary and yet has no powers to refuse to give his assent to the recommendations made by the Central Government means that the power to appoint judiciary is virtually in the hands of the government. Judiciary in India is thus not completely independent of the executive.
We have also done away with independence of all our democratic institutions like Election Commission, the speaker of the house and the investigating agencies like CBI, ED, etc. We have, as a rule, done away with the most important doctrine of democracy to have the three arms of the government independent of each other. All powers are virtually in the hands of the executives in our country. We are indeed a unique democracy. God bless us all.
We deserve better. And, to realize what we deserve we must have a presidential form of government and a different class of legislators (no illiterate and self-indulgent party-hoppers) and the directly elected President to lead a highly accomplished team that manages the various government departments. There is a plethora of problems created in the past decades and the ones that need to be addressed immediately are:
Getting rid of poverty and despair of over 65% of our population that is on dole today;
Reorganizing the justice dispensation system to get rid of an unmanageable back log, make legal recourse affordable for the common man, and reinforce faith in people about their accessibility to a fair and speedy judicial system;
Creating opportunities for employment for all those who are willing to work;
Streamlining the process and getting rid of red-tapism that is plaguing decision making and creating uncalled for delays;
Ensuring that the police force works for the people and not for the people in power alone; and
The most important and foundational requirement is of improving our growth to match our potential of close to 10% CAGR on a sustained basis.
INDIANS ARE VERY HARD WORKING, INTELLIGENT, ADAPTABLE, INNOVATIVE AND, ABOVE ALL, PEACE LOVING PEOPLE. WE, CERTAINLY, DESERVE BETTER AND WITHOUT LOSING ANY TIME. LETS ALL JOIN HANDS TO GET THE PRESIDENTIAL FORM OF GOVERNMENT IN INDIA.
The author, B. R. Taneja, is a Pune based industrialist.
