SEPARATION OF EXECUTIVE
Problems of Westminster Model
40. One of the most glaring elements of the failure of the Indian political process is the system of electing the political executive. The behaviour of the electorate is increasingly plebiscitary in nature. However, the Westminster model adopted by us recognizes executive power only by virtue of legislative majorities acquired by means fair or foul, often without reference to the public opinion or people's mandate. As people's mandate and power are easily divorced, the rulers are increasingly obsessed with survival in power at any cost. Over the past 50 years, several distortions have crept into our parliamentary system, severely undermining the legitimacy of authority and effectiveness of executive functioning.
41. The Indian polity is increasingly fragmented. Vote, instead of being an energizing, cleansing and unifying tool, has become a divisive force. The politics of vote banks has been consolidating primordial loyalties like caste, creed, group, etc. without elevating the level of consciousness of the voters. There is no democratic participation with a clear understanding of the nexus between the vote and the welfare of the citizen. For decades now it has been noted that in several pockets of India, and in recent years at the union level, even the formation of a government with majority support in the legislature has become increasingly difficult, painful and tortuous. The fact that the largest state of the union, Uttar Pradesh, is not able to throw up an elected government with legislative majority is only the latest and most striking illustration of the fragmented polity resulting from the politics of vote banks wholly divorced from the quality of governance and public interest.
Legislator or Disguised Executive?
42. The legislative office theoretically gives the incumbent the power to make laws, and keep the errant executive under check through various parliamentary
procedures. However, in reality, the legislators as well as the general public do not perceive the legislative office as one of law making and keeping the executive under check. Legislators are seen by the people and themselves as disguised executives. As the government is entirely dependent for survival on the support of the majority of the legislators on a given day, most of the time, energy, attention and efforts of governments are concentrated on mere survival. As huge investments in money are made to get elected, there is a natural propensity on the part of the legislators to seek patronage and share the spoils. There is an implicit understanding that the support of the legislators to the government is contingent upon the political executive doling out favours to legislators.
Rarely is this support based on principles, ideology or public opinion. Invari-ably there is a price extracted for such support in many forms. Appointment of public servants in key public offices, transfer of inconvenient employees, licensing, distribution of patronage in the form of subsidies and benefits to the poor, public distribution system, government contracts and tenders, mining licences, permissions to exploit the forest produce , maintenance of law and order, crime control, crime investigation and prosecution, execution of public works - all these are often at the mercy of legisla-tors. Even a well-meaning and honest political executive is helpless in enforcing high standards of probity, fairness and competence as it is at the mercy of the legislators on whose continued goodwill and support its survival depends.As a consequence, integrity in public office at the political executive level and survival in power are increasingly incom-patible.
Governance or Patronage?
43. In such a climate, all governance is then reduced to patronage, and transfers and postings of bureaucrats. As Robert Wade pointed out, there is a well-developed market for public office in India. Money habitually changes hands for placement and continuity of public servants at various levels. These public servants in turn have to collect 'rent' from the public. The hafta paid to a policeman, the mamool charged by the excise official, the bribe collected by the revenue functionary or the corruption of a transport officer are all part of a well-integrated, well-organized structure.This vicious cycle of money power, bureaucratic placements, political power, muscle power and election battles based on these is extremely well-entrenched and resilient and cannot be dismantled by a few good deeds of a few good people or by incremental reform or tinkering with the system. It is this vicious cycle that leads to the pervasive corruption that large sections of citizenry in all walks of life are disen-chanted with, and which is enfeebling ordinary citizens. With the exclusion of the people from the political process or governance, except voting once in a while in favour of a candidate who is imposed on them, most people are sullen, resentful, angry and frustrated. No matter how many times they reject a government or party in power, no matter how often they give vent to their anger and frustration through public protests, demonstrations, and at times violence, the real character of the governance does not seem to change. The local public servant behaves in the same manner as always - corrupt, greedy, arrogant and arbitrary.
Choice of Ministers
44. In the Westminster model of government that we have chosen, the choice of ministers is extremely limited, since ministerial offices have to be held only by legislators. In a fragmented polity,as the local legislator is locally elected more as a representative of the dominant castes and groups,he often does not stand for an ideology or poll platform or a mandate. His main purpose is to recoup the losses sustained in the elections or while out of office, and to further the interests of the
dominant groups or castes as a legislator and as a minister, if he can muster enough support to become one. Under the circumstances, it is almost always certain that we have a class of ministers, who have neither common purpose nor larger vision, nor understanding of the public affairs. The Council of Ministers is very often a loose collection of warring tribes perpetually feuding for crumbs of office or to further their own group or caste interests. Even in the rare instance when a minister is well-informed, competent and honest, the demands made on his time and energy by his constituency and party, the compulsions of influence pedaling and constituency-nurturing and the need for political survival by continuously extending patronage to legislators make it impossible for such a minister to diligently apply himself to the complex issues of governance, policy making and promotion of public good.
Perceptions-Macro Level Vs. Micro Level.
45. The elections are largely plebiscitary and the people vote for a platform or a leader or a promise or, as is seen more often, vote to reject the incumbent government or party in power. The individual candidate's ability is rarely an issue in our electoral politics. At the same time party workers and local oligarchies do not regard election as an opportunity to vindicate their policies or ideologies. In most cases, election of their chosen candidate is merely an opportunity to have control of state power and resources, to extend patronage selectively to people of their choice, to get pliant local bureaucrats appointed in plum postings, to humiliate and harass the inconvenient employees who would not do their bidding, and increasingly to interfere in crime investigation and prosecution by doctoring evidence, influencing investigation and letting criminals loyal to them go scot free and implicating people opposed to them in criminal cases. In the midst of this, governance is an irrelevant,and often inconvenient ritual without any meaning to those in power and without any positive impact on the people.
46. At the macro level when we examine a whole state or the country, the electoral verdict does broadly reflect public opinion. More often than not this verdict is a reflection of the people's anger and frustration and is manifested in the rejection vote, or their support to a leader,promise or platform. However, at the local level, caste or sub-caste, crime,money and muscle power have become the determinants of political power. All parties are compelled to put up candidates who can muster these resources in abundance in order to have a realistic chance of success.While political waves are perceived around the time of election or afterwards, at the time of nomination of candidates all parties are uncertain about their success and would naturally try to maximize their chances of success at the polls by choosing those candidates who can somehow manipulate or coerce the voters. As a net result, irrespective of which party wins,the nature of political leadership and quality remain largely the same, and the people end up being losers. This is then followed by another rejection vote in the next election and the vicious cycle keeps repeating. Where the candidate cannot muster money or muscle power, he stands little chance of getting elected irrespective of his party's electoral fortunes. Increasingly in several pockets of the country, people are spared even the bother of having to go to the polling station. Organized booth-capturing and rigging are ensuring victory without people's involvement.
New Entrants Into Politics
47. If we examine the new entrants into politics over the past three or four decades in the country, very few with intellect,integrity,commitment to public service and passion for improvement of the situation could enter the political arena and survive. Almost every new entrant has chosen politics exactly for the wrong reasons.A careful analysis shows that heredity and family connections are the commonest cause for entry into politics.This is closely followed by those who have large inherited or acquired wealth and have decided that investment in politics is good business. In recent years, many local muscle men, whose services were earlier sought for extortion or vote-gathering, are now directly entering the fray and gaining political legitimacy. A few persons have entered politics out of personal loyalty to, and close contacts with those in high public office.People with very high visibility on account of great success in mass entertainment like sports or films have also been increasingly drawn into the vortex of politics. Occasionally, accidents of fate are pitchforking certain individuals into elective public office. If we exclude these methods of heredity, money power, muscle power, personal contacts, high visibility, and accidents of fate, there will not be even a handful of persons in this vast country of ours, who have entered politics with deep understanding of public affairs and passion for public good and survived for any length of time over the past four decades. There is no activity more vital and nobler than governance. In the true sense, politics is about promotion of happiness and public good. But if the best men and women that society can boast of are either prevented or repelled or rendered incapable of surviving in the political arena, then that governance is bound to be in shambles. Over the past forty seven years of our republic, the unsuitable constitutional and legal mechanisms that we evolved landed the Indian republic in an extraordinary crisis of governability.
48. As individual candidates and party workers see the election as an exercise in promoting the disguised executive of their choice to further their interests exclusively and selectively at the cost of their rivals'interests, and at the cost of public interest, all elections become battle fields for supremacy. Perpetuation of feudal oligarchies and their dominance of state instruments are the chief purposes of electoral battles and power, as perceived by local elites and party cadres. As the disguised executive power of a legislator is informal and unaccountable, there is no effective check on it. In a society which is vertically fragmented, extraordinarily diverse, and relatively immobile, the electoral process under the circumstances explained has become highly divisive and contentious without reference to national or state issues or public good. Neither larger national and state issues nor issues of fundamental importance to people's lives like school education and health care are allowed to figure in the election process. As there is no nexus between authority and accountability, most state functionaries escape with plausible alibis. The resultant public anger and frustration in the political process is evidenced by the persistent rejection vote in most elections in India over the past 25 years or so.
49. Often the fear of rejection compels governments to adopt highly short-sighted and populist measures. However, as a general rule they do not help, as the exchequer is soon depleted, and the people have no respect for a government that is venal and ineffective, irrespective of the direct subsidies. In any case they realize that even when a government makes earnest attempts to improve their lot, its power to do good is extremely limited, while its capacity for harming public interest is enormous. A large and important part of people's lives is neither touched by the government, nor are the people given control over it to guide their own destinies. Many perceptive observers noted this extra-ordinary crisis of the Indian polity over the years and commented on the ungovernability of India. Galbraith, for instance, characterized India as a "functioning anarchy" decades ago. Increasingly today, it has become a dysfunctional anarchy.
Strains in Federal Polity
50. By the very nature of things, parliamentary democracy neccesitates irregular elections and possibility of dissolution of the house at any time on account of instability or at ruling party's choice and discretion. As the elections for the union parliament and state legislatures cannot be guaranteed simultaneously, the impact of one on the other is profound. For instance, even when a stable government is in power at the union level, electoral failure in one or two major states during the middle of the parliament's term severely undermines the authority of the union government. Therefore the government is forced to concentrate its energies on winning the local elections even at the cost of larger national interest. Similarly even if a government has stable majority in a state, loss of ground in parliamentary elections in the state seriously undermines the government's authority, credibility and even majority support. Therefore the state government tends to concentrate entirely on the parliamentary elections even at the cost of public interest. In addition, the frequent by-elections to legislatures lead to unbridled populism. In effect, a government is never secure and sure of a reasonable period of stability, during which its declared policies can be vigorously pursued and results scrutinized by the public at the end of the term. With this sword of Damocles hanging perpetually, it is not possible to give good governance.
Permanence in Power
51. Since there is no limitation possible on the number of terms of office held by the political executive in a parliamentary system, entrenched establishment groups tend to perpetuate themselves, preventing entry of fresh blood. It must be noted that no Prime Minister of India ever voluntarily relinquished public office after successful completion of one or two terms. They demitted office only on death or defeat at the polls or in parliament. Similarly, with the exception of a few persons, most of the chief ministers in India demitted office only on death, or defeat at polls, or removal by the high command, or censure bycourts. Even at the constituency level, in view of the patronage exercised by the legislators, and the nexus between corrupt or partisan permanent bureaucrats and politicians, the same individuals or families tend to compete for political power, irrespective of which party wins public support. Out of the nearly 5000 legislative offices up for elections in India at the state and Union levels, in the vast majority of cases there are only limited alternatives between the same 2 or 3 candidates. As people with money and muscle see good investment in politics in this climate, the finest citizens with integrity, dignity and honour are repelled from all political activity. Feudal oligarchies, and rigid social hierarchies are thus fortified and perpetuated, instead of being dismantled and marginalised.
52. The election of legislators only from established territorial constituencies in the first-past-the-post system has led to certain distortions over time. The elected legislator is compelled to nurse his constituency and concern himself with local matters, often at the cost of the larger societal interest. The social divisions have tended to get fortified with territorial constituencies leading to consolidation of primordial loyalties of caste, creed and group in our political process, rather than their weakening. The finest minds capable of providing direction and competent governance are often repelled by the no-holds-barred electoral battles at the constituency level. Increasingly, only those who can master the logistics of polling process at the local level tend to dominate the political process. Given the first-past-the-post system, certain political parties are over-represented in the legislature, with their percentage of vote substantially magnified in terms of legislative presence and other parties are under-represented. Several significant groups with sizeable popular appeal are almost totally wiped out from the legislatures, thus distorting public debate and stifling dissent. With fixed territorial constituencies, reservation to the legislatures and local bodies have become unpredictable and arbitrary, often fundamentally altering the political landscape of the constituencies.
2. Separation of Legislature from Executive
53. Keeping these distortions in our parliamentary political process, the following are the suggested essential reforms, aimed at separating the legislature from the political executive, and moving towards proportional representation:
i) The executive and the legislature must be separated at all levels - village, intermediate level, district, town or city, state and national.
ii) The head of the government at every level should be elected directly by the people for a fixed term of years.
iii) The head of government shall continue for the whole term unless replaced on death or resignation, or removed.
iv) The head of government can be removed for specific, recognized constitutional or other offences by impeachment by the concerned High Court at state level and below, and the Supreme Court at national level, followed by a trial by the appropriate legislature and removal by 2/3rds majority.
v) There shall be only one elected legislative chamber at every level. The legislature at every level shall be directly elected by the people.
vi) Every legislative body at every level-national, state and local - shall have two types of elections. 50 percent of the members shall be elected from territorial constituencies in the first-past-the-post system. The remaining 50 percent shall be elected from the lists of registered political parties by the proportional representation; only those registered political parties which obtain 10 percent or
more of the valid votes in the territory represented by the legislature shall be eligible for proportional representation (as indicated in 1.5 iv,v & vi in para 39).
vii) The term of office of the head of government and corresponding legislature shall be coterminous.
viii) The head of government has the right to appoint ministers of his choice, who shall serve office at his pleasure. However, no legislator shall be appointed as a minister.
ix) The survival of the government shall not depend on the majority support of the legislature.
x) There shall be a well laid-down succession procedure in case of vacancy of the head of government or a legis-lator, without having to resort to interim elections. Elec-tions shall be held only once in five years.
xi) Election for all union, state and local legislatures, and chief executives at union, state and local levels shall be conducted simultaneously once in five years.
xii) An elected legislature at any level cannot be dissolved until the completion of the term of five years.
Advantages of Separation of Executive from Legislature
54. A directly elected head of government with a fixed tenure
of office, and not dependent on legislative majority will have
the required freedom and flexibility for implementing the
policies for which he obtained public mandate. In a pan-national
or pan-state election for the chief executive, the dominance of
local groups tends to become irrelevant and therefore elections
are likely to be free from corrupt practices and violence. The
legislator will be the law maker and will exercise check on the
executive without determining the fate of the government. Since
he is no longer the disguised executive, people with money and
muscle will not have any incentive to waste their resources and
time for elective public office. Decent, well-intentioned, public-spirited
citizens will then be attracted to elective public offices-both
executive and legislative.
55. The governments will be stable with secure tenure of five years during which period they can implement their policies and go back to the people for their verdict on their performance. As there cannot be any dissolution of legislature, elections will be held on a regular basis for all elective offices throughout the country simultaneously. The executive will not be compelled to live from by-election to by-election or from one parliamentary vote to the next in perpetual fear of changing moods of the public or the legislators. Honesty and political survival will be compatible in such a climate. There will not be any strain on federalism, as elections to parliament and state legislature will be held together and one will not affect the survival of the other. The elected chief executive has the freedom to invite the finest creative minds with administrative acumen into his cabinet without any political or partisan considerations. The quality of governance, and credibility of
authority will be enhanced substantially. As the chief executive is elected by the whole nation or state, there will be tremendous political socialization, with informed public debate and dissemination of knowledge on issues becoming more easy. Democratic ethos will thus take deep roots with passing time.
56. As a well laid-down succession procedure will be available, the sudden vacancy of the office of the chief executive will not cause serious dis-location of government or polity. As the legislature can never be dislodged until the end of the term, the chief executive must always have the ability to carry the legislature and the people with him. Since separation of powers will be real, both the legislature and the judiciary will act as efficient safeguards against abuse of executive authority.
Chapter - 8
Back to top ^
57. The experience of the past 50 years clearly shows us that our constitutional checks against abuse of executive authority are far from adequate. In the parliamentary system, there is no tradition of limiting the length of service of a minister. As a result, our Prime Ministers and Chief Ministers, with very few honourable exceptions, have shown little inclination to vacate office except on death, defeat at the polls, removal by party high command or censure by courts. Perpetuation of the same functioneries for long in high public office at various executive levels tended to undermine democratic institutions. The oath of secrecy taken by every minister and the obsessive secrecy in government functioning at various levels have alienated people from governance, and made accountability excruciatingly difficult in the absence of easy access to information. Government's control of crime investigation and prosecution through its direct control of police often resulted in denial of justice, partisan functioning and political vendetta, paving the way for criminalisation of politics. All constitutional functioneries are appointed by the political executive with no check, with certain improvements in case of judicial appointments recently at the behest of the Supreme Court. The ability of such constitutional functioneries to stand up to the appointing executive authority has often been suspect.
58. Keeping in view the past experience of abuse of executive authority and the need to control an errant executive, the following safeguards against executive abuse should be incorporated constitutionally :
3.1 Limitation of Terms:
No person shall be eligible for election as chief executive at any level for more than two terms. On completion of two terms, such a person may seek another elective office at a different level if he so chooses.
3.2 Right to Information:
There shall be a guaranteed right to information to all citizens without prejudice to national security or investigation of crime. Any citizen, on application with prescribed fee, shall be entitled to obtain copies of any written document in government including contents of files, within a reasonable time not exceeding one week from application. Such a right shall be enforceable in a court of law. Only matters pertaining to national security and details of investigation of crime, which, if revealed prematurely, may result in the escape of culprits, shall be classified confidential or secret, thereby denying public access.
3.3 Independent Crime Investigation and Prosecution:
Independent prosecutors shall be appointed as constitutional functionaries at every level - national, state and district. These prosecutors shall be constitutional functionaries directly in charge of crime investigation and prosecution, with the police force entrusted with these responsibilities functioning directly under their control and supervision. The executive branch of government shall have no control over independent prosecutors or crime investigation and prosecution wings of police.
3.4 Independent Appointment of Constitutional Functionaries:
All constitutional functionaries including judges of the Supreme Court and HighCourt, Election Commission, Public Service Commission, independent prosecutors, Comptroller and Auditor General and others shall be appointed by the chief executive at the appropriate level after obtaining the majority consent of an independent body at that level called the Council of State. Such Council of State shall comprise of the Chief Executive, all former heads of State and heads of government at that level, the chief judicial officer of the territory concerned and the Presiding Officer and leaders of majority and minority groups in the appropriate legislature. The Council of State shall be a permanent body comprising of these functionaries and its approval should be mandatory for all constitutional appointments at the appropriate level -- local, district, state or national.
3.5 Constitutional Offences
There shall be a separate class of offences, called constitutional offences, which may entail impeachment and removal, as well as criminal prosecution and punishment. Action shall be initiated against a constitutional functionary on such matters when the appropriate legislature decides by a majority vote that there are actionable grounds.
59. As there is a limitation of two terms for the chief executive in the life time of any aspirant, there is no possibility of perpetuation of the same individual in the executive office. This in turn completely eliminates the possibility of autocratic or dynastic impulses gaining ascendancy. At the same time, a highly competent, popular and respected chief executive can seek office at a higher level, where his past record of office will enhance his electoral prospects. As right to information is guaranteed to all citizens and the press and the media, no government can afford to function arbitrarily or clandestinely or in a partisan manner violative of public interest. As the crime investigation and prosecution are entrusted to independent prosecutors, dissent can never be stifled by draconian means or abuse of state power. Also every crime investigator will have the power to investigate and prosecute any state functionary without fear of retribution or undue interference. Since all constitutional appointments will be made with the approval of Council of State, there will be a plurality of independent constitutional authorities, which will not allow concentration of powers in the hands of the chief executive.
While the executive branch of the government will be unfettered and free in its legitimate sphere of governance, it will not be allowed to transgress its limits and step on the toes functionaries of other branches. As there will be a separate class of constitutional offences, perpetrators of which risk removal as well as criminal prosecution with punishment, abuse of constitutional powers for personal and partisan ends will be checked effectively. The citizen is thus assured of good governance without any danger of abuse of authority.
60. These checks and safeguards, along with other proposed reforms relating to political parties, political funding and electoral system will ensure that governance is stable and effective, and yet accountable, responsive, democratic and transparent. In fact, a Prime Minister in the Westminster model with a captive majority in parliament is far more powerful than a directly elected chief executive, since the Prime Minister controls both the executive and the legislature in reality. Therefore, the fears of authoritarianism in a system of direct election of the chief executive are not well-founded, and are based on several misconceptions and inadequate appreciation of constitutional nuances, checks and balances.
Back to top ^
DECENTRALIZATION OF OUR
61. In their anxiety to preserve Indian unity at all costs against heavy odds, in the aftermath of partition, our founding fathers adopted a highly centralized governance structure. Such centralization is ill-suited to the needs of a vast, complex and plural polity like India, with disparate groups struggling to coexist and achieve a measure of cohesion and national integration.
62. Even a large district in India is bigger than half the nations of the world. Several of the larger states in the country are bigger than 90 percent of the nations of the world. In addition, given the linguistic diversity, vertical fragmentation of society, the uneasy coexistence of several layers of India from the middle ages to the 21st century and enormous immobility of the bulk of Indian population, there is no other nation on earth that can be really compared to modern India.
63. Given the complexity of India, high centralization meant that there is no true self-governance. The role of people in the democratic process is limited largely to the exercise of franchise on the day of polling, that too if the voter is lucky to have his name enrolled, the people who go ahead of him do not already cast his vote by impersonation, and if the local feudal oligarchies and musclemen condescend to permit the voters to exercise their franchise instead of capturing the booth and resorting to large scale rigging. In any case,the voters are entirely at the mercy of political parties, as they have no role in the choice of candidates and no means of assessing the candidates' worth or judging their performance at a level close enough to them.
64. In a centralized milieu,governance is remote and divorced from the people's lives and day-to-day concerns. What really matters to the citizen is the functioning of the school to which his children go, the treatment his family receives at the local primary health centre, the condition of the road in front of his house, assurance and quality of supply of water and electricity, the manner in which the local public servants in various offices and institutions treat him, and in general the myriad ways in which the administration impinges on his life everyday. When a government is remote, symbolism reigns supreme, and mindless populism eating into the children's future is the only way by which the distant big government can assuage a discontented public.
65. In the day-to-day interface with the government institutions, everyone is exposed to the all-pervasive corruption, insensitivity, unresponsiveness and inefficiency in the delivery of services. But in the absence of a self-correcting framework, complaints pile up, resentment reaches a crescendo, political process loses all credibility and the republic collapses all but in name. In the absence of a tried and trusted local leadership, heredity, perpetuation of feudal oligarchies, money power,muscle power, a combination of inducement and fear, divisive impulses like caste, creed, religion, language and faction, irrational factors unrelated to public good and accidents of fate are the sole determinants of political power. As a consequence, with increasing public resentment and frequent recourse to rejection vote, governments keep changing with unfailing regularity, but governance process takes a steadily downhill course.
66. The concept of nationalism during the colonial era took origin largely as a response to racial bigotry. The elites responded to it by cultural assertion, which at times bordered on atavism. In order to enlist the participation of the masses in the freedom struggle, an idolatrous sense of patriotism was inculcated, with Bharat Mata deified and worshipped. These elements of nationalism were suited to meet the needs of colonial era. But in independent, democratic India, nationalism must be based on some tangible and realizable ideals and goals. Freedom and self-governance, enlightened self-interest of individuals and groups, and guaranteed respect for, and adherence to, eternal human values are the only enduring bases for modern nationalism. A Villager afraid of a constable in uniform, a street- child who has no access to education or food, a citizen who has to bribe his way to gain access to a public office, a victim who cannot get justice in a law court for years, a voter who has no more role in governance than the ritual participation in an occasional balloting exercise when permitted by the local musclemen, and the general public who end up being lorded over by the so-called public servants, cannot foster, promote or strengthen nationalism.
67. It is clear from the foregoing analysis that we have not
taken adequate care to design truly democratic, self-governing,
self-correcting institutions. Our democracy is at best limited to
an occasional exercise of franchise in favour of a candidate, in
whose selection the people have no role. There is no real
positive power available to those in authority and thus there are
countless alibis for non-performance. However, there is
untrammelled negative power in the hands of these functionaries,
which is corroding our polity and administration. The people are
increasingly angry and frustrated, giving vent to their feelings
by various means, including the persistent rejection vote, and
easy recourse to agitation and violence. There is no nexus
between the citizen's vote and his welfare, and in the absence of
people's participation, governance is increasingly divorced from
68. Ever-increasing centralization in a vast and diverse polity led to serious fissures in our federal system. The union has little effective control even in matters of grave importance for the nation like insurgency, rising terrorist crime and management of inter-state water resources. However, needless power is sought to be exercised over states in a vexatious manner, resulting in harmless legislation taking years to obtain the concurrence of the President when constitutionally required, and the constituent states being often treated like outlying colonies of the empire. There is no real evidence of discrimination against any state or region, and devolution and transfer of resources are by and large according to well-established and objective criteria: Nevertheless, the centralized bureaucracy and colonial mind-set resulted in a feeling of mistrust, suspicion and resentment in the states.
69. In view of these manifest evils of over-centralization seriously corroding our republic, there must be a comprehensive restructuring of our governance process, making the citizen the true master. Such restructuring must have three vital elements. Firstly, the centre-state relations must be comprehensively re-negotiated in a manner that good governance becomes possible by removing the imbalances that have surfaced in our quasi-federal polity and establishing true and effective federalism, even while making sure that national unity and integrity are preserved and strengthened. Secondly, there must be genuine local self-governance system to ensure true democracy and people's participation. Authority and accountability must fuse, and people must be able to recognize the clear nexus between their vote and their welfare. Thirdly, there must be effective empowerment of people as stake-holders over institutions in whose functioning they have vital direct interest. Stake-holders must directly wield power so that distortions in the delivery of the public services are corrected instantly and state institutions of critical importance are not hijacked by vested interests and those in power.
4.1 Re-orienting Federalism
70. Several distortions have crept into our federal polity
over the years on account of glaring constitutional failings. The
political role of the constituent states in establishing their
own governance structure is important in a truly diverse federal
polity. In India, given the stultifying uniformity prescribed by
the constitution, various laws and executive orders, the rich
diversity of the Indian union is not reflected in the design of
the political structure of the constituent states. The fiscal
devolution is not commensurate with the enormous tasks of
governing and providing services that the states are entrusted
with - including law and order, land administration, rural and
urban infrastructure, education and health care. While states are
reasonably free to frame their own policies, the mechanism of the
Planning Commission and the centrally-sponsored schemes made sure
that their room for manoeuvring is very limited.
71. The emergency powers vested in the union under Article 356 of the constitution has seen the most striking abuses of authority by the union government in independent India. Of the nearly 100 occasions that Article 356 was resorted to on grounds of constitutional failure, in most cases the victim was invariably a government headed by a party other than that in power at the union. This is the most potent testimony of the fragility of our federal polity and the insecure foundations of our democracy. Sadly, no party or no government in the centre is free from blame.
72. The role of the Governor is one of the sorry chapters of the working of the Indian constitution. The Governors are necessarily the nominees of the Prime Minister, and serve at the pleasure of the union government. More often than not, they tended to please the political master at the union level by playing partisan political games, ignoring propriety, fairness and constitutionalism.
73. Distribution of powers is highly biased, with centre's overriding powers in concurrent subjects and all residual powers vested in the union. While the union has formidable powers of intervention even unjustly in legitimate spheres of state's activity, there are many areas where the union is a mute spectator in the face of grave threats to the unity and integrity of the nation or to vital fundamental rights like protection of various linguistic and other minorities, and other vulnerable sections.
74. While renegotiating centre-state relations, on the one hand there should be adequate checks and safeguards to ensure that the democratic process is not subverted by the union government for blatantly partisan considerations, often at the cost of national interest. On the other hand, there must be explicit recognition of the need for central intervention to prevent extreme breakdown of public order, uphold vital principles of the constitution or thwart serious dangers of secessionism in pockets of India.
75. In the light of these, the following are the suggested reforms in our federal polity:
4. 1.a) Article 356 and Governors
i) Article 356 must be repealed forthwith and the centre's right to dismiss lawfully elected governments must be extinguished.
ii) There must be explicit constitutional recognition of the duty of the union government to send security forces to any part of the union in order to maintain public order or to fight secessionism or to enforce the basic provisions of the constitution. However, in all such cases, the decision should not be left to the political executive alone, and there must be prior parliamentary consent for such central intervention in extreme cases.
iii) As already suggested while dealing with separation of executive and legislature (in para 53), there must be a directly elected governor who will function simultaneously as head of state and head of government. Such elected chief executive will have exclusive executive jurisdiction with security of tenure, with effective safegaurds against abuse of authority (para 58)
4. 1.b) Redistribution of Power
76. iv) Distribution of powers listed in the constitution between the centre and the states should bethoroughly revised. The union subjects must be limited to defence, external affairs,currency, monetary policy,communications, international trade and inter-state trade and a few other vital subjects.
v) All other subjects should be suitably distributed between the states and local governments constitutionally. There should thus be three lists -- the union list, state list and local government list. All residual subjects must be vested in the local governments or state governments. There should be no concurrent list.
4. 1.c) NEW POWERS TO THE UNION
77. vi) While the union must shed some unnecessary powers, it must have the following additional powers:
(a) Harnessing the inter-state natural resources - in particular inter-state river water resources.
(b) Settling disputes between states on any matter including border disputes.
(c) Exclusive and automatic central jurisdiction in investigation and prosecution of certain serious offences which have a bearing on national security, or national unity, or have a potential to undermine public order on a national scale, or subvert the democratic process. These must be treated as offences of special category with automatic union jurisdiction and responsibility. For example, serious terrorist offences like abduction must automatically come under union jurisdiction and the states must be constitutionally obliged to work under centre's guidance in such matters.
(d) The union must have the constitutional responsibility to ensure non-discriminatory and equal treatment of all citizens, particularly linguistic minorities in all states.
(e) The union must have the constitutional responsibility to ensure unhindered mobility of people across the states' borders, inter-state commerce and trade and unfettered access to education and employment throughout the country for all citizens irrespective of place of origin.
4. 1.d) Fiscal Devolution
vii) Fiscal devolution must be in the form of transferring a fixed percentage of all revenues of the union to the states instead of the present system of divisible pool and the central pool. The actual percentage of devolution, along with other modalities must be determined by the Finance Commission from time to time. The centrally sponsored schemes must be dispensed with and all transfer of resources must be only by devolution as outlined above, with freedom to states to evolve their own priorities.
4.1. e) All-India Services
viii) The existing All-India Services must be dispensed with. The only genuine case for All-India Services is for a judicial service in order to ensure high standards of excellence, integrity, impartiality, efficiency and speed. Therefore a new Indian Judicial Service must be created, and all other services should be restructured with unambiguous control of states as long as the officials serve a state. However, there can be common selection and training for public services pertaining to states, provided they seek such an assistance from the union.
4. 1.f) Council of States
ix) A Council of States must be constituted comprising of the chief executive of the union, chief executives of the states, speaker of the union legislature,the majority and minority leaders of the union legislature and the chief justice of the supreme court. All disputes pertaining to the federal structure or the states' interests shall be taken by the union in consultation with the Council of States. Changing the borders of the states,creation of a new state or abolition of a state or any changes in the powers of the states shall be with the prior approval of the union legislature, the Council of States and the legislatures of the concerned states.
4. 2. Local Self-Governance
81. The reforms in the sphere of local self-governance must ensure that genuine democracy prevails, locally elected governments are accountable to people, responsiveness and efficiency are promoted, public participation is meaningful and leadership is allowed to evolve rationally. These are possible only when authority and accountability fuse, and the nexus between the vote and the welfare of the citizen is clearly established.
82. The following are the suggested reforms in local self-governance:
i) As outlined above, there must be a new tier of governance with specific subjects listed in the constitution. Most of the subjects that have a bearing on the day-to-day lives of citizens must be entrusted to local self-governments.
ii) The chief executive of the local body at every level- village, intermediate level, district, town or city - must be elected directly.
iii) For every such local body, there must be an elected legislature with the power to make local laws in relation to the subjects entrusted to it under the constitution. The state legislature shall have no legislative jurisdiction under the control of local governments.
iv) Local governments shall have their own budget and resources derived from taxation and devolution. Devolution must be as determined by the State Finance Commission appointed constitutionally, and must be commensurate with the responsibilities.
v) Locally elected executive shall have complete control over the local bureaucracy which will be fully accountable to it. The state governments shall have no control over the local bureaucracy pertaining to the subjects under jurisdiction of local governments.
4. 3. Empowerment
83. While federalism and local self-governance will ensure
that power is exercised closer to people, they do not guarantee
power to the people directly. In areas where the stake-holders
can be clearly identified as a group, it is imperative that such
stake-holders alone must wield power, so that constant
improvement in institutions becomes possible and accountability
84. In order to promote such empowerment with effective people's participation, the following are the suggested reforms:
i) Wherever stake-holders can be clearly identified, the most important examples being school education, public distribution system, local public utilities, and to some extent primary health care, the power to run the institutions shall directly vest in the autonomous boards elected by the stake-holders, viz., parents of children enrolled in schools, consumers of public distribution network or the local population directly receiving care from the health centre.
ii) Local, state or union governments shall have power only to establish norms or standards, but shall not have the day-to-day control of such institutions.
iii) All people's institutions like cooperatives and voluntary social action groups, which are self-reliant and are not dependent on government support, shall be managed by their own members without any government interference, except to the extent that the general laws of the land are applicable to all individuals and institutions. There shall be no special control over such institutions merely on account of the fact that they are voluntary, participative, people's institutions.
85. These reforms to decentralize our governance involving reoriented federalism, local self-governance and direct empowerment of stake-holders will promote real and meaningful democracy by creating a nexus between the vote and the welfare of the citizens,and linking authority with accountability. The resultant non- arbitrary, transparent and accountable functioning of local institutions,with effective participation of people will promote genuine leadership. Above all, the primordial sectarian loyalties will give way to enlightened self-interest of stake-holders in the community.
86. The safegaurds against executive abuse outlined in para 58 -- limitation of terms to the executive, independent constitutional authorities appointed by the Council of tate, guaranteed right to information, independent crime investigation and prosecution and creation of a class of constitutional offences which entail impeachment and removal as well as prosecution-- will act as effective safeguards against abuse of authority of dominant groups or cliques, which might capture the local governments. Thus, while democracy becomes effective, delivery of services will be efficient and people participate perennially in governance, there will be institutional mechanisms to prevent abuse of authority and to ensure prompt correction of distortions.
<<Goto Contents page>> | <<Step to back page>> | <<Continue to next page >> | Back to top ^