The Montesquieun principle of separation of powers and the complementary concept of checks and balances are the hinges around which any thriving democracy revolves. In the words of the Supreme Court in Kartar Singh v. State of Punjab, “The legal sovereign power has been distributed between the legislature to make the law, the executive to implement the law and the judiciary to interpret the law…”. However, the line between the functioning of the executive and the legislature is rather blurred.
The words of the Constitution of India (prior to any amendments) seem to suggest that the President had the absolute discretion to exercise the powers vested in him by Article 74. However, following the judgment in Shamsher Singh v. State of Punjab and the 42nd and 44th Amendments to the Constitution, the position which emerges is that the President is bound to act in accordance with the advice of the Council of Ministers (“CoM”). In essence, the CoM drive both the executive and legislature and this is justified on the basis that in a parliamentary democracy, the concentration of powers must be at the hands of an elected institution rather than in an individual like in a Presidential form of government. The effect, though, is that the executive virtually has no check over the legislature.
However, the legislature has a few checks on the functioning of the executive. Illustratively, the legislature has the power to remove the council of ministers by moving a “no-confidence motion” (under Rule 198 of the Rules of Procedure and Conduct of Business in Lok Sabha (“Lok Sabha Rules”)) and to ratify treaties and ordinances under Articles 253 and 123 of the Constitution respectively. Importantly, every administrative action is put to trial during the Zero Hour of Parliament wherein every minister to whom a question is posed has to defend his/her administrative act.
Further, the legislature also places a check on the executive by constituting Parliamentary Standing Committees that are usually composed of members from across political parties. Such committees have the power to call for records and examine executive actions. Reports by such committees are then placed before Parliament. Despite the obvious overlap between the two organs resulting in usual inaction by Parliament in such circumstances, the flagging of issues after a study of records itself brings in accountability. Further, by these facts coming into public domain, it would then be open to an interested person to approach the third pillar, namely the judiciary.
That India has an overlapping legislature and executive means the institution with the foremost responsibility to maintain a system of checks and balances is the judiciary through the process of judicial review. While the judiciary is not empowered to set out policy, it has the power and in fact is under a duty to examine the decision-making process. Effectively countering Professor Waldron’s argument that empowering judges to decide on policy issues amounts to disrespecting the democratically elected representatives, Professor Sandra Fredman argues that judges can promote decision-making relating to policy issues without being the ultimate decision-maker. She supports this argument by further stating that the assumption that Parliament and executive make policy decisions based on effective participation with the citizens is often flawed and it is for the judiciary to ensure that participation is effective.
The judiciary thus has the crucial role of determining whether the policy decisions are based on relevant considerations including expert advice where necessary.The judiciary also has the duty to intervene where dereliction of duty by the executive results in violation of rights. Yet, the judiciary must ensure that it does not lay down the policy.
Functioning during COVID-19 times: Parliament has not been functioning during the pandemic. Hence the crucial checks on the executive by the legislature are currently non-operational. It is time that the functioning of Parliament resumes at the earliest through virtual sessions as undertaken in countries like France, Italy, Argentina, Brazil and Australia. Such virtual sessions are not prohibited and are in fact, implicitly permitted by Rule 267 of the Lok Sabha Rules.
In the absence of a functioning legislature, and with an executive compelled to make frequent policy changes to battle COVID-19, the entire burden of ensuring that checks and balances remain in place is on the judiciary. With shifts in theories to treat the disease and frequent changes at the ground level, policy changes are being made with unprecedented frequency. When any such policy decision is challenged in court, the court will have to scrutinise the decision-making process and also create an opportunity for stakeholder views to be considered without substituting its view on the policy. Considering the large-scale impact each executive action has in the current times, the courts do not have the luxury of time while carrying out this exercise.
A case where this has been followed is the batch of petitions challenging the Ministry of Home Affairs Notification dated 29.03.20 making it mandatory for all employers to pay full salaries to employees, failing which criminal consequences would ensue. Recognising the relevant concerns of employers who, owing to the lockdown, may not be able to comply, the Supreme Court initially directed that no coercive steps be taken against such employers and has subsequently asked for a meaningful engagement between the stakeholders to be coordinated where necessary by the labour commissioners.
There are other occasions where such a course has not been followed. Illustratively, the Supreme Court imposed the policy of “free testing” on the government without considering any of the economic considerations. Thereafter, the “free testing” was restricted to be made applicable to economically weaker sections.
Considering the unprecedented times that we currently live in, our democratic institutions will have to constantly introspect and overcome the challenges that are before them in order to ensure that democracy survives in this country during these difficult times.
(Anirudh is co-author of Law of Reservation and Anti-Discrimination and chief editor of Justice R S Bachawat’s Law of Arbitration and Conciliation.)
Anirudh Krishnan and Adith Narayan
Advocates at the Madras High Court
(anirudh@aklawchambers.com)