Introduction
A constitution performs several roles for society. It is not merely a document constituted of several legal provisions; rather, it represents the soul, identity, and aspirations of the society. At times, it acknowledges the past and lays down a guiding framework for the people to observe to materialise a collective vision of the future. It does this by envisioning and legitimising a governance structure, sketching the contours of state-people and people-people relationships, and envisaging other ancillary institutions and processes for the success of this project.
At the time of drafting of the Indian Constitution, the Constituent Assembly members mulled over several governance structures for India. Given India’s experience with the parliamentary system during colonial rule and the way it distributes state power among different institutions, the Assembly decided to adopt the parliamentary system of governance for India.
The successful operationalisation of the parliamentary system of governance necessitates the emergence of strong political parties. If the entire parliament is constituted of independent members with no binding common ideology among each other, the cost of government formation and legislative functioning rises immensely, possibly crumbling the entire system as a result. Political parties, therefore, play the most critical role in ensuring the success of the parliamentary form of governance. They provide the guiding lens to help people make decisions at the time of elections, unite politicians with similar ideologies under one umbrella organisation, and help make the executive government and the legislative chambers stable.
However, to preserve the most fundamental idea underlining the Indian Constitution – democracy, and to avoid winner-takes-all situations where the majority-holding political party could take over the entire constitutional system and rule by its whims, the Constitution creates a web of independent apolitical institutions to balance and check the powers of the political organs. These include the courts, the Election Commission, the Comptroller and Auditor General, etc. Even certain positions, such as that of the Speaker and the Governors that we may perceive as political, are envisioned to function independently to balance and check the powers of the political executive. Bereft of such institutions and their independence, the Indian Constitution stands the risk of losing its identity. The entire constitutional system could be captured by a single political party that happens to be in power, which, with the required undemocratic and authoritarian actions, could infiltrate the system and entrench itself in power for the long term. Independent institutions, therefore, are critical to the sustenance of democracy.
Constituent Assembly Image credits - Wikipedia
Over the last few years, however, a trend of declining independence and increasing partisanship in the performance of several independent institutions could be witnessed in India, contributing to what scholars of democracy have termed democratic backsliding. The threats posed by these trends to the Indian constitutional system are imminent, and if they continue unchecked, they could cause lasting and systemic damage to the health of the Indian democracy. This is not a new phenomenon, both for India and globally. In the past, governments have made similar attempts to politicise constitutional institutions and establish control over the system. However, what makes the present dispensation different is the manner and ambition of their modus operandi. The attacks posed to the Indian democracy today are incremental and subtle, and they are strategised with the ambition to capture the minds of the people and make the majority so ideologically aligned that the threats to independent institutions cease to be perceived as attempts to seek partisanship.
Against this backdrop, the following paragraphs will discuss two examples of how partisan conduct could reshape and damage independent institutions, which could then be deployed to attack the identity and promises envisaged in the Indian constitution.
Partisanship and the Legislative System
The sound functioning of the Indian legislative system depends on the presence of a strong and independent parliament. It is true that the parliament is ultimately constituted of the parties that people (for Lok Sabha) and states (for Rajya Sabha) vote for by way of choosing their representatives; however, the Constitution envisages an independent identity for the parliament that transcends beyond its party-centered composition. The Constitution demands that the parliament functions as a branch co-equal to the executive to ensure that the executive functions within the domains of the Constitution and is constantly held accountable, as the people could exercise their constitutional right to vote out a government only once in five years.
It becomes very important, therefore, to lay down and design the parliamentary institution in such a way that the ruling party remains in check and cannot abuse the legislative system to its advantage. Several procedural and institutional design mechanisms are adopted in the Constitution and parliamentary rules in this respect. For instance, the rules mandate that every bill that is proposed to be enacted as a law for the country must be laid before the House for extensive debate and deliberation before being put to vote. Similarly, provisions are made for the creation and functioning of several kinds of parliamentary committees to assist the parliament in performing its oversight and deliberation role.
While both the ruling party and the opposition are expected to contribute to the effective functioning of the parliament, the Speaker and the Vice-President (“the Presiding Officers”) are the constitutional officers responsible for securing the independence, rightful conduct, and management of the Lok Sabha and Rajya Sabha, respectively. It is the Presiding Officers who, inter alia, working along with the parliamentary secretariat and the Union Parliamentary Affairs Minister, hold the power to decide the agenda of the house, make a decision on who is allowed to speak and for how long on matters of national importance, conduct voting on bills and motions raised in the House, constitute and refer matters to parliamentary committees, and take decisions on disqualification petitions arising out of defection by members. For other matters, for instance, the removal of members from the proceedings of the House, the power is vested with the House, and the House decides by a simple majority.
The readers would note here that despite the intention of the Constitution to ensure that the parliament remains independent of and co-equal to the executive government, its design and organisation allow any majority-holding ruling party (or the ruling coalition, as the case may be) to abuse the processes and undermine the institution. This is particularly important because the election of the Speaker of the Lok Sabha is also based on a simple majority vote, allowing the government to appoint that member as the Speaker who could toe the party line and perform its function in a partisan manner. The position of the Speaker, therefore, becomes severely significant in a coalition government.
Several instances of such abuse of process by the Presiding Officers can be noticed in the past few years. To note a few, the Lok Sabha speaker has wrongly notified a few important bills as money bills to bypass any meaningful debate in the Rajya Sabha; [1] they have delayed taking any decision on disqualification petitions filed on account of defection of opposition party members to the ruling party; [2] they have, with a majority vote largely supported by the ruling party, suspended a high number of opposition party members from the ongoing sessions of the House; denied the requests of the opposition party members to hold discussions on matters of contemporary national importance; and failed to forward bills to parliamentary committees for an extensive in-camera multi-partisan deliberation.
Suspended MPs Image credits - The Week
In light of these developments, there are discussions among the opposition parties, civil society, and academia about how the design of the Indian parliamentary system must be given a rethought to secure the parliament's independence. Under the present system, the parliament will continue to be rendered at the mercy of the ruling executive. While a brute majority may be seen as a catalyst for a decisive and stable government, it could also prove to be counter-productive when analysed from the lens of the health of the Indian constitutional system. A weak parliament does not contribute to the effectiveness of the government; it only concentrates power within the government, makes it unaccountable, and removes the only channel available to the people to make themselves a part of the governance system throughout the five-year term of a government.
One of the suggestions in this respect is to constitutionally envision and recognise the power of the opposition. A formal and stronger presence of the opposition in the scheme of things, rather than the current system where the powers are entirely vested with the ruling majority, either by way of a majority vote or the Office of the Speaker, would help in the redistribution of powers and balancing of the ruling majority. Some areas where the opposition could be formally given a role are agenda setting and referencing the bills to committees.
Another issue to be analysed in terms of partisanship of independent offices and their impact on the legislative systems is the manner in which state Governors have compromised the due functioning of the state legislative assemblies at the behest of the union executive. Under the Indian Constitution, the state Governors are appointed to their Offices directly by the union government, without the need for any electoral approval or consultation with the respective state governments. The ruling party at the center deems it in their interest to appoint politically aligned individuals as Governors in the states, particularly where the state government is run by the opposition.
In the past, India has witnessed an era where successive union governments would replace the governors immediately upon their election, thus going against the express words of the Constitution and making the political overtones of the Governors’ Offices obvious. This violated the essence of the Indian Constitution so blatantly that the Supreme Court had to intervene to put a check on this practice. Nevertheless, much hasn’t changed in terms of political realities. Political parties consider Governors as an important link between the union government and the states, through whom they could keep the presence of their party alive in the opposition-ruled states and ensure that party personnel are involved in the governance of the states, irrespective of the voters’ mandate.
Similar to the President, the Governors are vested with very limited authority in terms of the presence and exercise of independent powers. Except for a few countable matters, the Governors are constitutionally obligated to perform their functions only with the aid and advice of the state council of ministers. They are specifically disallowed from acting independently of the elected state governments.
However, in recent years, one could witness several instances where such partisan centrally appointed Governors unconstitutionally interfered in the functioning of the state legislative assemblies, thus impacting state governance. To note a few of such events, Governors have denied the requests of the state governments to summon the state assembly, have asked for floor tests without the existence of any no-confidence motion from the opposition party, have interfered in the appointment of elected representatives as ministers; and have indefinitely sat upon bills that have received due assent from the state legislative assemblies.
When all such actions are cumulatively studied, one finds that the design of the Indian Constitution provides limited checks against the aggrandisement of power by the ruling party at the centre, which can effectively control, crush, and shrink the space available for the opposition parties. The authorities that are tasked to safeguard the constitutional institutions and ensure equal space to both the ruling party and the opposition parties, though imagined as independent, could easily be turned into partisan positions, further exacerbating the control of the centre over the totality of India’s affairs. This also prompts us to a discussion about how this plays out against the idea of federalism as envisaged in the Indian Constitution.
Partisanship and the Federal System
The Constitution defines India as a union of states. It promises every state a set list of items on which its democratically elected government can make laws and policies independent of the union government, thus guaranteeing legislative, executive, and financial independence to the states, though this independence is not absolute. Apart from the constitutional structure, the presence of strong state parties further strengthens Indian federalism. Parties like the DMK and AIADMK in Tamil Nadu, TDP and YSRCP in Andhra Pradesh, BJD in Odisha, AITMC in West Bengal, SP and BSP in Uttar Pradesh, JD(U) and RJD in Bihar, Shiv Sena and NCP in Maharashtra, and AAP in Delhi and Punjab make it difficult for a single political party to reach the majority mark in national elections in India. These strong state parties have caused the emergence of a long coalition era in Indian politics since the late 1980s until Narendra Modi received a historic mandate for the BJP in 2014. A marvellous electoral performance by state parties like the SP, AITMC, JD(U), TDP, and DMK in the 2024 national elections has led to the re-emergence of coalition politics in India. As the national parties require the assistance of such smaller but regionally dominant state parties in successfully forming the government, who also happen to run state governments in their respective states, they act as a check against the union government’s centralising instincts.
Only the future can tell how the recent 2024 elections and the reemergence of coalition politics in India will change the dynamics of Indian federalism. However, the study of the last ten years will produce several stories about how politically motivated actions of the union government with the sole purpose of establishing the universal dominance of the BJP across the Indian political landscape subdued Indian federalism. Most noteworthy among these are the attempts by the BJP to cause strategic defections of the legislative assembly members belonging to the opposition parties in order to collapse opposition-ruled state governments (for instance, Madhya Pradesh and Himachal Pradesh) and the attempts to break state parties to weaken their control over the state governance machinery (for instance, Maharashtra).
At first blush, these events may not reveal the partisan performance of the independent offices and institutions to assist the union government in meeting its political ambitions. However, a deeper study of the defections reveals the undemocratic manoeuvre of the union government using independent institutions, particularly security and law enforcement agencies. Bodies like the Central Bureau of Investigation and Enforcement Directorate, which fall under the union government, have been used to threaten and abuse members belonging to the opposition parties. This deployment either forces its victims to pledge their allegiance to the ruling party (investigations are stopped and charges dropped once the members shift their allegiance) or results in long incarceration without any judicial determination of guilt, hurting their and their parties’ political fortunes.
At times, even state law enforcement agencies are abused to neutralise and delegitimise the political opposition. Consider the defamation case against Rahul Gandhi, where he was given the maximum punishment of two years of imprisonment in a defamation case arising out of a statement he delivered at a political rally (note that it is quite unusual in the Indian criminal jurisprudence to sentence someone to two years of imprisonment in a criminal defamation trial).
Image credits - The Hindu
Security and law enforcement agencies are only one strand of the centralising ecosystem. Several other bodies perform a similar role in their respective domains. Most noteworthy in this regard could be the continuous interference by the Lieutenant Governor of Delhi in the functioning of the democratically elected Delhi government. State governments have also raised concerns about the functioning of financial institutions, stating how their actions compromise the financial independence of the states.
Concluding Remarks
The Indian constitutional structure imagines a balance of power between partisan and independent institutions. One should not forget that partisan institutions (like the Council of Ministers) are equally important to the success of India’s democracy. They work as people’s representatives and help keep the bureaucratic and non-elected wings of the government under democratic checks.
However, partisan performance by independent institutions damages this balance. It is of utmost importance that these institutions reclaim their independence and function with integrity and in accordance with the essence of their role marked in the constitution. There are even other institutions that we haven’t discussed above that need to meet this standard. The most prominent in this respect is the Election Commission, which has lost a lot of credibility in recent years. To ensure that the people retain their confidence in the democratic exercise and keep believing in the Indian democratic project, the Election Commission must make efforts to secure itself from every form of external pressure and portray the image of a strong independent institution. At the same time, the partisan and political institutions must also be held responsible if they violate the constitutional principles in their functioning. Partisanship should only be the channel to claim power; institutions should look beyond petty politics upon attaining power.
Partisanship among independent institutions does not arise owing to a single cause. Threat, fear, enticement, and ideological affiliations are only some of the factors responsible. As this note has attempted to emphasize, constitutional structures and institutional design can do only so much. The success of our constitutional project hangs on the conscience of the powerholders and how strongly they resist undertaking any constitutional impropriety. Integrity and a belief in the Indian constitution stands in opposition to the four factors mentioned above. It is a sincere hope that every officer of the Indian state would choose integrity and uphold the Indian constitutional schema while undertaking their functions.
Mr Anmol Jain is a Delhi-based lawyer specializing in constitutional law. He holds law degrees from National Law University, Jodhpur and Yale Law School, and has been a Fox International Fellow at Melbourne Law School.
LinkedIn - @Anmol Jain
Twitter/X - @AnmolJain_Law
Endnotes -
The Rajya Sabha does not have the power to vote on money bills. It cannot even second guess the opinion of the Speaker of the Lok Sabha to notify a bill as a money bill. It can only forward its opinions to the Lok Sabha, which has the power to reject such opinions without any consequences for the bill. Governments tend to use this money bill route to bypass the Rajya Sabha in situations where it feels that it does not have the required majority to win majority support in the Upper House. Until recently, even the Supreme Court was of the opinion that it does not have the power to review the decision of the Speaker to notify a bill as a money bill.
The Constitution mandates that if any member of parliament or a legislative assembly defect from the political party on whose ticket they won the election and joins another political party, they will be disqualified from continuing their membership of the House once the Presiding Officer confirms the factum of defection. To avoid the situation of a favorable Speaker delaying their decision on the disqualification petition when an opposition party member defects to the ruling party, the Supreme Court has mandated that the Speakers must make their decisions within three months from the date on which the petition is filed with their Office. However, the Presiding Officers continue to delay their decision with impunity, both at the central and the state level.
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