| Loksatta-Corruption-Eradication |
SEPARATION OF EXECUTIVE
AND LEGISLATURE
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.
Dysfunctional Anarchy
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.
Territorial Constituencies
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
SAFEGUARDS AGAINST
EXECUTIVE ABUSE
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.
DECENTRALIZATION OF OUR
GOVERNANCE
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
the people.
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
78.
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
79.
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
80.
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
becomes real.
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.
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