The Indian Constitution like that of many other democracies, which believe in the ‘Rule of Law’ is based on the doctrine of Separation of Powers and the Doctrine of Checks and Balances, formulated separately by Montesquieu and by John Locke. “Power” should never be vested either in a Single Individual or a Single Institution. Our Constitution achieves this by splitting power horizontally by way of Parliament, Executive & Judiciary and vertically by way of Union Government, State Government & Local Bodies. Some power also resides with the people of India as fundamental rights under Part III of the Constitution.
All executive action is subject to judicial review. In turn, Supreme Court/High Court Judges can be impeached by Parliament. Other Constitutional bodies like UPSC, CAG, and Election Commission etc provide additional layers of checks and balances. The trouble is that the Constitutional values have never been fully imbibed either by the political class or by the bureaucracy or others responsible. In a way, there is no part of Constitution or any other Statute that provides full autonomy to any institution. Parliament can amend the Constitution as per the procedure prescribed in Article 368 but cannot destroy its “Basic Structure”. Though autonomy can never be sacrosanct, the constitutional bodies must act and work freely and without fear. Undermining this, the Constitution itself would be in peril.
In the aftermath of the Sabarimala verdict and the faith vs Constitutional provisions debate, the Judiciary rightly upheld the Constitution, wherein all citizens are guaranteed equal rights. It is the Judiciary which must prevent any legislative or executive act from overstepping constitutional bounds. The Court, rightly so, remained unaffected by pressure exerted by the branches of the state, citizens and other interest groups. Admittedly, there are temples in the Country which are not just prayer houses. Several of them also indulge in occult practices and have their own norms. If faith were to rule above the constitutional provisions, people and not Courts should have resolved. Having been adjudicated upon, how right is it for the people, the interest groups or even elected governments to brazenly profess noncompliance? The Courts must step in to infuse order in the chaos, for it is now their autonomy, that they must ensure and see, is respected. Mandir politics could be all over them soon, if not addressed.
Seventh Schedule of the Constitution, a list of 52 items, includes the power to be considered by both the Central and State governments. Like the devil is in the detail, the grey area is often the bone of contention. An often cited argument is of Jallikattu, which has gone on for ages. Tamil Nadu in 2009, enacted a legislation to regulate, since there were reports of human deaths and cruelty to the bulls. In 2011, the environment ministry banned it. Nevertheless, there was a state law permitting it, albeit with regulation. The issue went to the Supreme Court which banned it in 2014 and struck down the state legislation. After several agitations and even more contrived arguments, the Tamil Nadu Legislative Assembly, unanimously passed an amendment to the Prevention of Cruelty to Animals Act in 2017, seeking to amend certain sections of the Central Act and ensure, bulls are not barred from being used for the rural bull-taming sport. Is this not a blatant violation? Can the SC strike down this as well, if one were to approach it?
The Political Masters would always like to believe that they deserve the highest powers and would hence seek to undermine the institutional autonomy either through the Legislature or the Executive. To understand this, one must see in its perspective, the clause in the memorandum of procedure for selecting Judges of the SC, giving the Union government the final say in rejecting a name recommended by the Collegium, if it is in the “national interest”. Who defines the national interest is anybody’s guess.
The recent speak by experts and discussion forums on the institutional autonomy, be it RBI or CBI or any other, skirts several important aspects and borders on rhetoric. Governments are tempted to prod the central bank into excessively loose monetary policy, as this can help temporarily pep up the economy, useful in the run-up to an election. The cost of such an adventure could be high and variable inflation in the long run, with no real economic gain. Most advanced economies and some emerging economies have actually firewalled the central bank from political interference, either de jure or de facto since the long-term effects can be very distressing not to speak of the putative repercussions in global financial markets. It certainly is not a good idea if the Government were to become a super regulator with a micro-managing slant, for not only it impedes innovation but also allows thriving subservient “yes boss” culture.
The perilous fallout of CBI vs CBI is another case in point. Autonomy is a double-edged sword and can cut both ways. A clean autonomous functioning of an intelligence agency must be celebrated. People of integrity with no local agenda must be chosen to head them. An agency answering the political masters can always turn around when the control shifts. Are we then systemising “Mario Puzo’s” best-selling novel the “Godfather”? Another case in point is, while the Election Commission had sought a constitutional amendment for greater autonomy and rulemaking powers with a provision to treat the election commissioners on par with the chief election commissioner, the amendment should have merited discussion and possible acceptance. However, in an affidavit filed with the Supreme Court, the Centre shot down the EC plea for autonomy and an independent secretariat. The gross inability to understand the Constitutional provisions can be disastrous, for any government.
The 10th Schedule to the Indian Constitution, that is popularly referred to as the ‘Defection Law’ was inserted by the 1985 Amendment to the Constitution. Though ‘Defection’ is defined, is it that we have no defections today? Legislators find ingenious ways to beat the anti-defection law and we are all privy to that. Determinately, as long as we assume that rules are meant to be broken and the ingenuity is actually in getting away, having done precisely that, no amount of autonomy would ever work.