Principal Organs of Union & State Governments

Union Executive

Executive, legislature and judiciary are the three main organs of the government. Each has distinct functions and powers to ensure a balance of power and effective governance.

The legislative branch is responsible for making laws. In India, at union level, it consists of parliament (Lok Sabha and Rajya Sabha) while at state level, it consists of state legislative assemblies and legislative councils (for some states only).

The laws made by legislature are implemented and enforced by executives. The executive wing includes the head of state (President/governor), the head of government (prime minister/chief minister) assisted by his council of ministers. These political executives are then assisted by permanent executives in the form of bureaucracy.

While legislatures make laws and executives implement them, the task of the judiciary is to interpret the laws and administers justice. Along with various laws passed by parliament, judiciary is also tasked to interpret the supreme law of the land i.e. constitution and to ensure that other two organs abide by the constitutional code. The judiciary is composed of the Supreme Court, High Courts, and subordinate courts.

In this topic, we will deal with the executive branch of government.

The President of India is the ceremonial head of state and the highest constitutional authority in the country. The President is elected by an electoral college, which includes elected members of both houses of Parliament as well as the elected members of the Legislative Assemblies of States and Union territories. The tenure of the President is five years, and he/she can be re-elected.

As the ceremonial head, the President represents the unity and integrity of the nation. He performs various important functions such as appointing the Prime Minister, other ministers, judges of the Supreme Court and High Courts, and governors of states. The President also has the power to summon and prorogue Parliament sessions, and he can dissolve the Lok Sabha, the lower house of Parliament, based on the advice of the Prime Minister and the Council of Ministers.

While the President of India primarily holds a symbolic and ceremonial role, he does have some discretionary powers. These include the ability to seek information from the Prime Minister, ask the Council of Ministers to reconsider their advice, return a bill for reconsideration (except a money bill), or withhold the assent to the Bill (pocket Veto). The role of President also becomes significant in times of political instability or constitutional crisis, requiring him to make critical decisions to maintain the constitutional framework.

The question whether President is a mere ceremonial head or enjoys a substantial discretionary power, has remained a matter of debate since independence.

The original Indian constitution does not create a rubber-stamp president. President had discretionary powers. e.g. President was not bound to act on the aid and advice. President enjoyed absolute veto i.e. power to not give assent to the bills of parliament as well as pocket veto i.e. power to withhold the assent to the bill.

However, there was lack of clarity. The approach of constituent assembly was not clear. The task was left on future generations to shape the institution. However, the conflicts started as early as from the first president of India. When Dr. Rajendra Prasad, first president of India conveyed his desire to exercise his own discretion in assenting to Bills, this view of president's power was firmly opposed by Nehru.

In view of Dr. Rajendra Prasad expressed that Indian system is different from that in Britain. Whie in Britain, the monarch can do no wrong (as he /she acts always on the advice of ministers), in India the President is both elected and impeachable.

In 1971, the 24 th Constitutional Amendment made it binding on president to give ascent to constitutional amendment bills. The amendment added a new clause to Article 368, which specified that once a Constitutional Amendment Bill is passed by both Houses of Parliament by the required majority, the President "shall give his assent" to the bill. This removed any discretion the President might have had in withholding assent to amendments.

Thus, through the amendment, parliament removed the power of absolute veto of president in case of constitutional amendment bills. However, the time period for president to give his/her assent was not specified, and thus he retained the pocket veto i.e. to withhold the assent to the bill for indefinite time.

The 42 nd Amendment, ended all uncertainties. Through this amendment, the President was explicitly required to act according to the advice of the Council of Ministers. Before this amendment, Article 74(1) of the Constitution only stated "There shall be a Council of Ministers with the Prime Minister at the head to aid and advice the President in the exercise of his functions". This which was interpreted to mean that the President had some discretion. The 42nd Amendment made it mandatory for the President to act on the advice of the Council of Ministers, thus eliminating any discretionary power. Now, the amended article read, "There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice ."

This amendment 1) made it mandatory for president to act on aid and advice. Further by making provision in the constitution itself, 2) if the president does not act as per advice, it became clear that the ground of impeachment.

he 44th Amendment retained the provision that the President must act on the advice of the Council of Ministers. However, it reintroduced the President's right to send back the advice once for reconsideration. If the Council of Ministers reiterated their advice, the President was then required to act on it. This restored a degree of discretion to the President, allowing for a second review of the executive's advice.

The article 74(1) now read, (1) There shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such advice:

Provided that the President may require the Council of Ministers to reconsider such advice, either generally or otherwise, and the President shall act in accordance with the advice tendered after such reconsideration.

According to the constitutional experts, this amendment was not correct in accordance to the parliamentary system. It was not motivated by any democratic concern but by political calculations. i.e. If the prime minister is from Congress and president from non-Congress, non-Congress parties can utilize the institution in their favor. Both, 42 nd and 44 th amendment left the pocket veto as it is.

It is to be noted that even after the dissolution of Lok Sabha, the President in the exercise of his powers, is bound by the aid and advice of the Council of Ministers. Supreme Court, in UN Rao vs Indira Gandhi (1971) stated that 'any exercise of powers by the President without the advice of the Council of Ministers shall be unconstitutional as being violative of article 74(1).

Despite active efforts to curb and limit the powers of president, the President of India enjoys certain discretionary powers.

• Constitutionally, the President has a right to be informed of all important matters and deliberations of the Council of Ministers. The Prime Minister is obliged to furnish all the information that the President may call for. (Art 78). The major cause behind the displeasure of president Zail Singh during Rajiv Gadhi's prime ministership was the government not providing the copy of certain report, violating article 78.
• In case of advice tendered to President by Council of Ministers, under article 74(1), "President may require the Council of Ministers to reconsider such advice." However, "President shall act in accordance with the advice tendered after such reconsideration."
• Article 111 of the constitution stipulates that, when a bill is presented to the President after being passed by both the Lok Sabha and the Rajya Sabha, the President can 1) give assent to the bill, making it an act 2) withhold assent (exercise of Pocket Veto) or 3) return the bill, if it is not a money bill, with a request for reconsideration by Parliament. If the bill is returned and passed again by both houses with or without amendments, the President must give their assent.

This provision to keep assent to the bill for indefinite time was exercised by the president Gyani Zail Singh in 1986 with regard to Indian Post office (amendment) bill. After the term of Zail Singh, the new president Venkataraman sent the bill back to parliament for reconsideration. Since the government had changed in meantime, the bill was not brought back to the parliament.

• Apart from above situations, the role of president also becomes important when there is fractured mandate after elections. If there are multiple claims to form government, president has discretion to decide who really may have the support of the majority and can form the government. Accordingly, he can choose the candidate.

The election of 1998 is a vivid example of this. After the elections, BJP and its allies secured 251 seats, 21 short of majority. No party secured clear majority. In exercise of his discretion powers, president Narayanan asked Vajpayee to "furnish documents in support of claim" and to secure a vote of confidence within ten days of being sworn in.

While the constitution grants certain discretionary powers to President, it is not always desirable for president to exercise them. We cannot equate presidential activism with judicial activism. As per the principles of parliamentary system, president is not an institution of accountability; it is parliament and ultimately people.

The post-independence experience suggests that the presidential activism was directed more by party considerations than democratic considerations. Whenever the position of Prime Minister is weak because of hung parliament, there is a scope for other institutions like Judiciary, President to increase their power.

Best explained by former president R. Venkatraman. 'President is an emergency lamp'. Prime Minister is a main power and president comes to light only when main switch is off. It is not proper to call president as rubber stamp. President is a position of dignity. He is a symbol of nation; hence it is better to describe president as constitutional head.

In parliamentary setup the role of president is that of a friend, philosopher and guide. There are three rights of Queen in Britain (Explained by Bagehot) - Right to 1. Informed 2. Advice 3. Warn

Co-habitation, refers to a situation in a semi-presidential system of government where the president and the prime minister come from different political parties. This typically occurs in countries where the president is directly elected by the people and has significant executive powers, but there is also a prime minister who is responsible for running the government and is accountable to the legislature.

The concept of co-habitation is a feature of French constitution. In France, the position of president is good/smooth when prime minister is also from his party. However, the problem arises when they are from different parties. Co-habitation impacts the smooth functioning of government.

Like president, the Vice President of India is elected for five years. His election method is similar to president, except that the members of state legislatures are not part of the electoral college. The office of vice president is the second-highest constitutional office after the president and ranks second in the order of precedence and first in the line of succession to the presidency.

The Vice President acts as the ex-officio Chairman of the Rajya Sabha and takes over the office of the President when there is a vacancy by reasons of death, resignation, removal by impeachment or otherwise.

The Vice President acts as the President only until a new President is elected. In Indian history, vice president B. D. Jatti acted as President on the death of Fakhruddin Ali Ahmed in 1977, until a new President was elected.

As laid down in Article 74, there shall be a Council of Ministers with the Prime Minister the head to aid and advice the President ...

After elections, the political party or a coalition which successfully won the majority of seats makes claim to form the government. A leader who has the support of the majority is appointed by the President as Prime Minister. The Prime Minister then decides who will be the ministers in the Council of Ministers. The Prime Minister allocates ranks and portfolios to the ministers. Depending upon the seniority and political importance. The prime minister and all the ministers have to be members of the Parliament. If someone becomes a minister or prime minister without being an MP, such a person has to get elected to the parliament within six months. (In the same manner, Chief Ministers of the States choose ministers from their own party or coalition.)

The council of ministers, headed by prime minister, is collectively responsible to the Lok Sabha. This provision means that the government which loses confidence of the Lok Sabha is obliged to resign. The principle indicates that the ministers is an executive committee of the Parliament and it collectively governs on behalf of the Parliament. In the U.K. the concept is that of individual and collective responsibility of ministers. However, our constitution only provides for collective responsibility. There is no no-confidence against a single minister. i.e. the council of ministers stands and falls together.

In Britain, every act or order for the public is countersigned by a Minister. Thus, there is ministerial responsibility. In India, however, ministers have no legal accountability for acts of the state which are done in the name of the president and are required to be countersigned by a secretary or an authorized officer.

Before the 91st Amendment Act (2003), the size of the Council of Ministers was determined according to exigencies of time and requirements of the situation. But this led to very large size of the Council of Ministers. Besides, when no party had a clear majority, there was a temptation to win over the support of the members of the Parliament by giving them ministerial positions as there was no restriction on the number of the members of the Council of Ministers. This was happening in many States also. Therefore, an amendment was made that the Council of Ministers shall not exceed 15 percent of total number of members of the House of the People (or Assembly, in the case of the States).

There is often debate on whether the position of the Prime Minister in India vis-à-vis other ministers should be described as "primus inter pares" (first among equals) or as "inter stellas luna minor" (moon among the stars). While there are some institutional factors which contribute to this, a lot also depends on the personality of the prime minister and the position of his party in parliament.

• The Prime Minister in Indian setup enjoys a pre-eminent place in the government. The Council of Ministers cannot exist without the Prime Minister. The Council comes into existence only after the Prime Minister has taken the oath of office.
• Further, the death or resignation of the Prime Minister automatically brings about the dissolution of the Council of Ministers but the demise, dismissal or resignation of a minister only creates a ministerial vacancy.
• The prime minister acts as a link between council of ministers in one end and the president as well as parliament on the other.
• Prime minister leads the nation in international arena.

However, as said above, a lot also depends on prevailing political situation and the personality of prime minister. Whenever there is majority of a single political party, the position of prime minister is unassailable.

On the other hand, in a coalition government, major decisions often necessitate consultations between political partners, and this erodes the authority of the prime minister. Prime minister cannot unilaterally choose his own ministers, nor can he be adamant about government policies and programs. Thus, prime minister has to act more as a negotiator than as a leader of the government.

We can also trace out how the personalities of different prime ministers played role in their position vis-à-vis council of ministers.

Initially, Nehru shared power with strong leaders like Sardar Patel, maintaining a collegial atmosphere within the Cabinet. However, after Patel's death, Nehru's dominance increased, and he became more of a central figure, overshadowing other ministers and leading the government with considerable personal authority.

In case of Indira Gandhi, she transformed the parliamentary system into a more centralized prime ministerial system. Her tenure saw a significant shift towards authoritarian trends, and diminishing the collective nature of the Cabinet. There was less consultation from the Council of Ministers, and loyalists within the government had more influence than the ministers themselves.

In case of Rajiv Gandhi, his preference for technocrats and advisors diminished the role of experienced ministers, leading to a more top-down approach in decision-making.

Despite leading a coalition government, Vajpayee's strong and charismatic personality allowed him to maintain effective leadership.

While in his first term, Singh managed to provide effective leadership despite coalition constraints, in his second term, the emergence of a diarchy with Sonia Gandhi affected exercise of his powers. This resulted in a division where Singh had the responsibility but not the full authority.

Narendra Modi has centralized power significantly, much like Indira Gandhi. His dominant personality has led to a strong prime ministerial role, with a marked reduction in the collective nature of the Cabinet's decision-making. This has enabled him to push through major reforms and initiatives, reflecting a highly centralized leadership style.

Parliament

India is a parliamentary democracy. In such a setup, parliament/legislature is the center of gravity. It is the most representative organ of the government, and also a supreme institution to maintain the accountability of the executive. Parliamentarians are the representatives of the people and through parliamentarians the ultimate responsibility towards the people is achieved.

Parliament of India consists of three parts i.e. the President, the Council of States (Rajya Sabha) and the House of the People (Lok Sabha). Rajya Sabha is also called the house of the elders, and the Lok Sabha as house of the people. While the former represents the states and union territories of India, latter represents people of India as a whole.

The conduct of the Indian Parliament is regulated by multiple rules and procedures. The constitution of India provides the structure, power and functions of the parliament. Further, each house (Lok Sabha and Rajya Sabha) has its own set of rules (Rules of Procedure and Conduct of Business in Lok Sabha /Rajya Sabha) that govern its proceedings, debates, committees, and conduct of members. The amendment to these rules is approved by the house before given effect.

Apart from the written laws, the conduct of parliament is also governed by the parliamentary conventions. It refers to the unwritten practices and norms that have evolved over time and are followed to ensure smooth functioning and uphold the democratic process. They are based on historical precedent and parliamentary practices in other democracies like the British.

The various functions of parliament can be discussed as follows:

• The most important function of a parliament is to make laws. This includes drafting, debating, and passing bills. For example, the Goods and Services Tax (GST) Act was passed by Parliament to create a uniform tax system across India.
• To make significant changes to government policy or governance system, Parliament can also amend the Constitution. For example, with the Constitution (106th Amendment) Act, 2023, parliament made provision for reservation of one-third of all seats for women in Lok Sabha and State legislative assemblies.
• Further, Members of Parliament (MPs) also represent the interests and issues of their constituents. They bring local issues to national attention, like debates on agricultural policies affecting farmers.
• Through parliamentary proceedings, and mechanisms like question hour, MPs can hold the ministers accountable on a day-to-day basis.
• Debate and discussion are considered as the core of democracy. Parliament is a forum for discussing national issues. This includes debates on policies, international relations, and social issues. This helps in arriving at better policy decision and also serves to educate the people.
• Apart from the functions listed above, parliamentarians also perform electoral function by participating in the election of the President and Vice President of India. Parliament also wields power to impeach the President, judges of the Supreme Court, and High Courts for violation of the Constitution.

[The difference between parliamentary and presidential system and the reasons behind constitution makers choosing parliamentary system for India have already been discussed in topic 3] Salient Features of Indian Constitution -> Parliamentary System.]

When parliament fails to do the primary task assigned to it, it indicates decline of parliament. Such a decline is accompanied by decline in the respect and faith on the parliament among the people. The decline of parliament also indicates the relative rise of other institutions i.e. executive and judiciary.

• The rise of civil society activism, social movements show that people are not satisfied with the functioning of parliamentary democracy. e.g. There were huge farmers protests in 2020-2021, against the three farm laws passed by the Indian government. The protest led to the eventual repeal of the laws in November 2021.
• The extensive use of ordinances, as allowed under Article 123 of the Indian Constitution, despite being an extraordinary measure, indicates a decline in the functioning and effectiveness of the Parliament. While around 4,500 bills have been passed since independence, approximately 750 ordinances have been issued. The high frequency of ordinances suggests a reliance on executive orders rather than democratic legislative processes.
• The increasing reliance on ordinances can correlate with shorter parliamentary sessions and fewer sitting days. The average annual sitting days of the first Lok Sabha was 135 days, and the 17th Lok Sabha (2019-24), sat only for 55 days on average in a year.
• According to the study, in 17 th Lok Sabha, 58% of Bills were passed within two weeks of their introduction. The J&K Reorganization Bill, 2019 and the Women's Reservation Bill, 2023 were passed within two days of their introduction. 35% of Bills were passed with less than an hour of discussion in Lok Sabha. The corresponding figure for Rajya Sabha was 34.
• Another indicator suggesting decline of parliament is the reducing number of Private Members (PMB) Bill being discussed. In 17th Lok Sabha, only two PMBs of them were discussed. During same time, 14 Private Members Bills were discussed in Rajya Sabha.
• In addition to above, till date, only 14 PMBs have been passed and received assent. Notably, none such bill has been passed in both Houses since 1970.
• The 17th Lok Sabha was the first ever to function without a Deputy Speaker, a constitutionally mandated position. Article 93 of the Constitution requires that the Lok Sabha elect a Speaker and a Deputy Speaker as soon as possible.
• A significant number of parliamentarians face criminal charges, which impacts the integrity and image of Parliament.

We can also judge the performance of Indian parliament on the basis of the indicators given by World Bank to measure the performance. World bank has given 6 indicators.

• Financial indicator - Parliament is a supreme institution of accountability of the govt. hence parliament's financial accountability on cost of the country has to be evaluated.
• Compliance - Parliament is a supreme institution of law making in the country. There is a need to assess how much parliamentarians comply with the rules of procedure which they make themselves for the conduct of parliament.
• Efficiency - We have to evaluate the efficiency of parliament in terms of quality of work, time invested and cost involved.
• Effectiveness - How much presence of the institution is felt in the country.
• Relevance - How much qualitative improvement the institution is bringing in the life of the people.
• Sustainability - Is institution in rise or decline?

Initially decline was due to the overreach of executive and later on because of judicial activism.

• Criminalization of Politics: The presence of a significant number of lawmakers with criminal cases in the parliament reflects a troubling trend in Indian politics. In 18 th Lok Sabha, close to 50% of elected members have registered criminal cases against them. If the lawmakers themselves don't have regard for the law, it represents an unfortunate situation.
• The destructive role of opposition: The role of opposition in a parliamentary democracy is crucial. It serves as a check on the ruling government, ensures accountability, promotes debate and provides alternative viewpoints. This is the reason that in Britain, opposition is also known as 'her majesty's opposition'. In India also there is statutory recognition to the post of LoP (Leader of opposition).

However, when opposition parties' resort to a destructive role, it impacts the functioning of parliament. In an era of globalization era and developmental politics, parties do not have differences over policies. Thus, instead of opposition on certain policy matters, there is 'opposition for sake of opposition'.

This leads to frequent disruptions of parliamentary work, boycotts, walk-outs, protests and chaos. This undermines dialogue, discussion and debate, undermining the very essence of democracy.

• Increasing Specialization: Over time, politics has become a highly professionalized business. Thus, the inadequacy of education and training in the operational mechanics of parliamentary polity and law making has adversely affected the performance of the legislators.
• Globalization: Further, globalization has also weakened the nation state and its rule making powers. Indirectly it has reduced the scope for autonomous policy by national parliaments.
• Other Reasons: Apart from above mentioned reasons, other factors also contribute to the weakening of Indian parliament from time to time. It includes judicial and executive overreach, a strong mandate to single party or sometimes a fractured mandate and coalition politics, defections, politicization of the post of speaker etc.

Parliament is considered as a mirror of society. The picture of Indian parliament does not paint a good picture of civilizational state like India. There is an urgent need of reforms to ensure that parliament retains its legitimacy. Dr. in his book Reviewing the Constitution, suggests following reforms in Indian parliament:

• Building a better image of Parliament: Parliament is the communication link between the people and the government. Deliberate and concerted efforts are needed also at the professional level to rebuild Parliament's image as the supreme institution of the people. A better use of communication tools like the print and electronic media can play a vital role in building a healthy image of Parliament
• Panchayats and Parliament: The role of M.P. must undergo change. Ideally, Members of Parliament are Members for the whole of India and should concern themselves basically with the national issues leaving the local problems to the care of Panchayats and Nagar Palikas. Schemes like MPLAD are bound to create role conflicts and tensions and actually prove distracting to these lawmakers.
• Improving the quality of Members: A parliament would be what its members make of it. With politics becoming a highly professional business, should be understood as such. Institutionalized arrangements are, therefore necessary to provide the much-needed professional training and orientation to every newly elected Member irrespective of his ideological or party affiliations. The curriculum should include, among other things, adequate knowledge of the political system, the Constitution, the Rules of Procedure and Conduct of Business, the practices and precedents, mechanisms and modalities of the working of the Houses and the Parliamentary Committees, the do's and don'ts for Members, the rules of parliamentary etiquette and the like. The emphasis should be on the practical know-how, the technicalities and the operational realities and the concrete situations and not the rule book.
• Improving information supply: Information is power. For any effective surveillance over administration, Parliament needs information. Instead of depending almost entirely on published documents - which are almost always outdated and - parliament must build its own independent national information reservoir with a network of feeding and retrieval points.
• Setting up a Constitution Committee: The responsibility of Parliament become much greater in the case of Constitution (Amendment) Bills. Thus, instead of the Constitution Amendments being presented to Parliament like ordinary pieces of legislation, if Parliament is associated right from the initial stages of formulation of proposals through the device of Constitutional Committee, this will bestow greater authority, legitimacy and wider acceptability to the reform proposals. This will also make it harder for judiciary, to thrash the constitutional amendments as violative of 'basic structure', undermining the legislature.
• Parliamentary Control Over Borrowing: In India, there is no provision for a parliamentary scrutiny or control of public borrowing. Unlike U.K., in India, the Constitution and the laws place no limits on the borrowing powers of the Executive. This is a significant lacuna. For, public borrowing is a charge on the future generations and must be duly controlled.
• Codifying Parliamentary Privileges: In a democratic society, any privileges for a section or class of the people are anachronistic, any undefined privileges are even more so. These privileges should not be allowed to be used in such a manner as to nullify themselves and become rights against the people. There is a strong case or codifying the privileges of parliament. This will remove the existing uncertainty and anxiety of the press and the people while judging the parliament.

While the above-mentioned reforms are crucial, it is important to note that parliamentary reforms, political party reforms, electoral reforms, judicial reforms, etc., all have to be taken up together in an integrated approach as part of the overall review of the working of our Constitution. No single reform can provide a miracle cure and no reforms should be affected in a hurry. We must proceed with utmost care and caution and evolve a national consensus on desirable changes.

The factors which were relevant at the time of independence to choose parliamentary system are still relevant. Except USA there is no other example where Presidential system remained democratic.

According to Ambedkar, "howsoever good a constitution is, it will not work if we as a people do not want it to work." Ambedkar kept on insisting the need to adhere to constitutional morality. There is no guarantee that if presidential system comes, the problems are going to be resolved. Hence change in attitude rather change in institutions is needed.

It is important that necessary steps like capacity building of parliamentarians, depoliticization of the post of speaker is taken to restore the dignity. Parliamentary system is also a part of basic structure of the constitution and to change it, we will have to re-write the constitution.

However it is high time, we should take serious steps towards the devolution of powers at the local level and think about introducing some sort of direct democracy along with representative democracy.

Position of a speaker is position of dignity. He is pivot of parliamentary system. In the words of Pandit Nehru, 'Speaker represents the dignity of the house, freedom of the house. He represents nation, he is a symbol of nation's liberty, dignity. His position should be occupied by men of outstanding ability and impartiality.'

Speaker comes next to president, vice-president and prime minister in the order of precedence. In parliamentary setup, the position of speaker is extremely powerful. His position is so important that he does not vacate the office on the dissolution of Lok Sabha, continue in office until the first meeting of newly constituted Lok Sabha.

The salaries and allowances of the speaker are charged on Consolidated Fund of India and are not subjected to voting. His conduct cannot be discussed, except on substantive motion for his removal. He does not vote except in case of equality of votes. He has to vote (casting vote) according to the parliamentary conventions. He conducts the business of the house and is final interpreter of the constitution in the house. He is ultimate authority with respect to the rules within the house. Anything said by any member cannot go on record without his permission.

The speaker can expunge the text if he finds it unparliamentary. He decides the breach of privilege of the house. He constitutes all parliamentary committees and appoints chairpersons. Speaker himself is the chairman of 3 committees 1) Business advisory committee. 2) Rules committee. 3) General purpose committee. No one can be arrested from the premises of the house without his permission.

• In 2015, Nabam Rebia, the Speaker of the Arunachal Pradesh Legislative Assembly, disqualified 16 MLAs from the ruling Indian National Congress (INC) under the Tenth Schedule of the Indian Constitution, (Anti-Defection Law). The disqualified MLAs argued that they had neither left the party nor defied any party directives. In July 2016, the Supreme Court of India delivered a landmark judgment, reinstating the disqualified MLAs. The Court ruled that the Speaker's actions were unconstitutional and that the disqualification was not justified under the Tenth Schedule.

Opinion of page committee of UK

Even when speaker is a neutral position in UK, yet committee acknowledged that there can be a possibility of the speaker going partisan. Committee mentions that if speaker fails to maintain the neutrality, it sounds death knell of parliamentary democracy. Hence committee recommended that speaker should be made the member of house of Lords after retirement.

• Case of Britain: In Britain privileges were introduced with the purpose. The tussle between King and Parliament. Hence parliament asserted 1) Privilege of parliamentarians to speak against the king. 2) It became the privilege that no person will be arrested from the premises of the house without speaker's permission. 3) At present in Britain even uttering defamatory statements against the house is not treated as breach of privilege. The last person to be imprisoned was Charles Bradlaugh in 1880. However, in India, even in 2018 journalists were imprisoned.

In USA it is said that Congress in session is Congress at display whereas Congress in Committee is Congress at work. The real legislative business takes place in the committees. This is so since parliament meets for limited time whereas committees continue to work throughout the year.

Committees can take the specialist view on a particular issue. Political parties will not cooperate on the floor of the house because of political reasons but they can cooperate in the committee because it does not work under the glare of media. Further, committees can involve the experts and stakeholders for wider consultations.

The strongest committee system in practice is in USA. In USA, the bills can go directly to the committees even before introduction in the house. The life of bill can end in the committee itself, there is no need to send the bill back to the house. (Pigeon Hole practice).

In India, committee system does exist but it does not work efficiently. In India it is not necessary to refer the bill to the committee. The number of bills referred to the committee have come down considerably. According to the report of PRS legislative research. In 14 th Lok Sabha 60% of bill were referred to committees. The percentage was 71 % in 15 th and dropped to 28% and 16% in 16 th and 17 th Lok Sabha.

Another paradox is that the recommendations are either nor tabled and thus not even discussed. Even when discussed, they are not implemented. The committee system started in India in 1921 when public account committee was setup. Estimate committee was setup in 1950. Since 1993, department related standing committees have been set up. With respect to legislative business, there are 4 types of committees. 1| Financial. 2| Departmental standing committees. 3| Select committees - means ad hoc committees which are meant to scrutinize the bills. (most imp committee). 4| Rules committee.

In India there is a considerable decline in the attendance of the members. Some of the weaknesses of committee system have been mentioned by Pratap Bhanu Mehta and Devesh Kapoor as following.

• They suffer the general weaknesses of parliament in India.
• There is lack of capacity among parliamentarians.
• Committee members are elected only for a year. This results in wastage of experience gained.
• The members are not given any additional remuneration so they have no motivation.
• There is lack of qualitative research support.
• Committee recommendations are neither discussed nor implemented.
• Ministers are not the part of the committee and so they are neither involved nor are they supportive.

The committee system is indispensable to foster informed decision-making, to ensure government accountability and to enhance legislative efficiency. Therefore, ensuring the effective functioning of committees remains crucial for the overall effectiveness and credibility of India's parliamentary democracy.

Supreme Court

"Judiciary in India will not be a silent spectator rather active participant in India's social revolution."

Constitution envisaged extremely powerful, fiercely independent, 'activist judiciary'.

In Art 36. judiciary comes within the definition of state in part IV. If government (executive and legislature) fails to give effect to directives, it becomes the duty of the judiciary to give effect to directives. e.g. It is because of Supreme Court that Right to Education has become a fundamental right. Right to Food has become a statutory right.

Art 141." The law declared by Supreme Court shall be binding on all courts within the territory of India." The prime responsibility to make law is with legislature but in a situation where legislature has not made law, Supreme Court can declare the law. e.g. Till parliament brought a law on the Sexual Harassment of Women at Workplaces (2013), Vishakha guidelines issued by Supreme Court (1997) were to be treated as law.

According to Bhikhu Parekh, India is a classic example of 'judicial co-governance'. According to Pratap Bhanu Mehta, India is a classic example of 'Judicial sovereignty'. It denotes supremacy of judiciary even over and above the supremacy of the constitution. It is a well-established principle that in a country with written constitution, constitution is supreme. But 'constitution is what judges say'. In case of India, Supreme Court show an extreme example of Judicial creativity. e.g. With respect to 1] The doctrine of Basic Structure. 2] System of appointment of judges. Judiciary has gone beyond the constitution itself.

Assessment of Supreme Court's functioning has to be done on the basis of its 'envisaged role' and actual performance. Envisaged role of SC is, as a

• Protector of the constitution
• Guardian of fundamental rights /rule of law
• Federal court
• Active participant in India's social revolution
• Apex court in 2 contexts a) Highest court of appeal b) Internal administration & functioning of judiciary

1] As a protector of constitution: Initially Supreme Court was passive, but later on because of executive overreach, Supreme Court became active towards its obligations. The doctrine of basic structure was invented by SC to check emasculation of the constitution by executive which was bent on diluting the essential features of the constitution itself.

2] Guardian of Fundamental Rights: Initially SC did not appear as a 'sentinel qui vive' (Guard with arms) of the FRs, allowed executive to dilute the FRs for the implementation of DPSPs. Emergency was the darkest hour in the history of Supreme Court. When Supreme Court's action was needed the most, it failed to protect the rights of the people. One of the blots on SC is the judgement in Habeous Corpus case. (ADM Jabalpur Vs Shrikant Shukla case). After emergency, there have been change in the approach, 1st reflected in Maneka Gandhi case 1978. It overruled its judgement in AK Gopalan case, held that the doctrine of due process of law is inherent in the doctrine of procedure established by law. Because of activist judges like P N Bhagawati, Supreme Court instituted PIL (Public Interest Litigations), which strengthened the rights of the weaker section. Since then, working with civil society, judiciary has strengthened human rights in India. Supreme Court has interpreted the meaning of Right to Life liberally to provide various rights.

Though SC has strengthened the rights in India, but it has not been able to bring any concrete change in the situation. e.g. Supreme Court's judgement in Sabarimala case could not be implemented on the ground because of lack of support from the governments as well as civil society.

3] As a federal court: As per Art 131, Supreme Court has original jurisdiction for the resolution of the disputes between center and state and among states. In this context, Supreme Court has been able to play its constitutional role. Though constitution restricts Supreme Court in case of inter-state water disputes, yet when required Supreme Court did intervene using the powers under Art 136. Whatever progress is observed in resolution of Kaveri water issue, it is because of SC.

After remaining silent on many occasions which include the misuse of Art 356, SC in S R Bommai case declared federalism as a basic structure and restricted the misuse of Art 356.

4] SC as a protector of Rule of Law: SC has mixed record in context of rule of law. The rule of law implies checking the arbitrariness of executives, it also includes checking the corruption and criminalization. SC working with civil society and election commission took initiatives to reduce the influence of money and muscle power in the elections.

Similarly, it has tried to uphold the rule of law in the cases of corruption like 2G spectrum.

It is because of SC that some amount of trust has emerged in Indian political system.

One of the major critics of judiciary is Pratap Bhanu Mehta, according to him:

• Judiciary is highly politicized institution. He uses the phrase 'politicization of judiciary'. Judiciary trying to strengthen its own powers. It seems judiciary takes opportunity from the political crisis in India to strengthen its own image. Hence, he considers judiciary as a 'self-perpetuating institution'.
• Mehta also calls Indian judiciary as 'promise of uncertainty'. It keeps on changing its judgements within a short period of time. Judiciary has never made an attempt to arrive at the overarching set of values while interpreting the constitution. Hence judgements become 'artefacts of individual judges'. As a result, instead of rule of court (ideally rule of law) India has rule of judges. e.g. The recent controversy related to the allocation of benches with respect to the case of the death of Justice Loya. In India there is a struggle among the petitioners to get a particular bench. It shows that there is a possibility that the judgement may vary from bench to bench. It becomes a matter of life and death.
• According to Pratap Bhanu Mehta, Indian judiciary is 'highly paradoxical institution'. There is, 1_Big difference in theory and practice. i.e. Very powerful judgements but very limited change at the ground level. 2_Judiciary intervening in the work of other institutions at the cost of huge backlog in context of its own primary role, disposal of appeals even in cases involving death sentences. 3_Judiciary ensuring accountability of other branches of govt. without its own accountability. According to transparency international, second most corrupt institution in India after police.
• According to Pratap Bhanu Mehta, at present the judiciary is facing the worst crisis, the crisis of institutional credibility. In 2018, the 4 judges of SC took unprecedented step in calling press conference and talking about the internal anarchy which is prevailing in the judicial system. They mentioned that if urgent steps are not taken, the future of democracy is under threat in India.

It is a doctrine of judicial review applied by judiciary to examine the validity of constitutional amendment bills.

There has to be a difference between amendment of the constitution and rewriting of the constitution. Amendment should not go the extend that it becomes difficult to find out the original constitution. Hence Supreme Court held that parliament represents 'political sovereignty' whereas constituent assembly represented 'popular sovereignty/general will'. Hence even with absolute majority in both the houses Amendment bill cannot be passed in case it destroys the basic structure.

The act of extreme judicial creativity. Instead of looking at the written provisions, judiciary has gone for understanding the 'soul', the invisible part of constitution. Thus, the doctrine is of meta-physical nature.

1st School of thought: Example of judicial overreach, extreme creativity. Judiciary usurping the powers of parliament, assuming itself to be the constituent assembly. Instead of giving importance to the written provisions, gave preference to meta-physical elements, judges projecting themselves as philosopher kings. Assumed immense discretionary powers as they have not given the exhaustive list of what constitutes the basic structure, it is like a hanging sword, killing legislative initiative.

Another controversy is that that doctrine came into effect by affirmative vote of the single judges. 6 were against and 7 were in favor.

2nd school of thought: It is true that judiciary has gone beyond the constitution, yet the doctrine of basic structure acted as a blessing in disguise. Executive was bent on emasculating constitution of its vital features. If judiciary had not done this, India would have gone in the direction of other 3rd world countries. (Zia Mody - TEN GREAT JUDGEMENTS THAT CHANGED INDIA). Acc to Zia Modi, uncertain democracy was preferable over certain authoritarianism. There is no need to give the exhaustive list rather it should be as a safety valve.

State Executive

Thus, the role of the prime minister vis-à-vis the council of ministers has varied greatly, largely influenced by the personalities of the individuals holding the office. While some, like Vajpayee, managed to lead effectively even in coalition settings, others, like Indira Gandhi and Modi, have centralized power to a great extent. Conversely, the diarchal setup during Manmohan Singh's second term illustrates how power can shift away from the formal head of the government, depending on the political context and personalities involved.

As per Art 153, there shall be a governor for each state. According to article 154, the executive power of the state shall be vested in Governor...

The Governor is the constitutional head of each of the Indian states, functioning as the representative of the President at the state level. He is appointed by the President, and the tenure of Governor is typically five years, though they can remain in office until a successor is appointed. The role of the Governor is largely ceremonial, mirroring the parliamentary system where the real executive power rests with the elected Chief Minister and the Council of Ministers. However, the Governor holds significant discretionary powers, resulting in, at times, misuse of these powers.

Like union system, India have adopted 'parliamentary system' even at the state level, and according to the theory of parliamentary system, there is a need of two heads i.e. nominal and real head. Further, parliamentary system is inherently unstable, thus, the head with fixed term is needed for the purpose of continuity in administration. Additionally, since parliamentary system is based on party politics. Hence a head is needed who can be treated as above party politics.

All of these factors, coupled with India's experience with the British system, the secessionist tendencies of Indian states and the experience of partition, led to naturally incorporate the office of Governor in Indian political setup. As suggested by Paul Brass, unlike Nehru's view, Indian constitution has been framed not in the atmosphere of optimism but in the atmosphere of fear, trepidation.

Thus, at state level, if the Chief Minister is the real head, Governor is a nominal head. Supreme Court in Shamsher Singh case has clarified that there is no difference in the status of President and Governors, both are constitutional heads.

• Governor's responsibilities include giving assent to bills passed by the state legislature, summoning and proroguing the state legislative assembly, and dissolving the legislative assembly on the advice of the Chief Minister.
• The Governor also plays a key role in the administration of the state by appointing the Chief Minister, who must have the majority support in the state legislative assembly.
• During times of President's Rule in a state, the Governor assumes more direct control over the state's administration, acting under the guidance of the President and the central government.

Governor has dual responsibility. Besides the nominal head of the state, he is also a link between union and state. In the words of Sarkaria commission, 'Governor is a lynchpin'.

Unlike USA, which has dual federalism, India has cooperative federalism. The union and the state governments are not independent, rather they are interlocked. Governor has an important position in linking the two sets of governments. However, in reality, the institution of cooperative federalism turns out to be the institution of bargaining federalism.

As a lynchpin, Governor has to do 'bridge-building'. 1) He has to communicate the state's aspirations to the Union and 2) Governor has to national perspective at the state level. Thus, Governor is like 'eyes and ears' of Union at the state. Governor is like 'long arm' of Union with iron fist and velvet gloves.

When a constitutional functionary has to take decision solely on the basis of reason, it is called discretionary power. According to Indian constitution, Art 163 (1) - "There shall be a council of ministers with the Chief Minister as the head to aid and advice the Governor, except where constitution requires Governor to act in his discretion."

There are five broad areas where Governor can exercise his/her discretion.

• Art 174 prorogue and dissolve the assembly.
• Art 175 - Send messages to the assembly.
• Art 200 - Giving ascent to the bills.
• Art 201 - Reservation of Bills for president's consideration.
• Art 356 - Recommendation of president's rule.

In some states like Nagaland, Governors have special responsibility.

According to Art 163(2). "If any question arises whether the matter is such where Governor should exercise his discretionary powers or should not exercise, the decision of Governor will be final and cannot be called into question." (Suggesting that such exercise of power is beyond the scope of judicial review.)

Further, according to Art 361 - "Neither president, nor governor is answerable to any court for anything said or done in context of its constitutional responsibility."

However, Supreme Court in Nebam Rabia case opined that, "the decision of governor is not beyond the scope of judicial review. Judiciary can enquire whether the action of governor was with mala-fide intention."

Most of the examples are with respect to the misuse of Art 356. The misuse started during the time of Pandit Nehru itself.

1) 1952 - Governor of Tamil Nadu T Prakasam, instead of inviting communists who had more seats invited C Rajagopalachari of Congress to form the government.

2) In 1959 the first misuse of Art 356 when the communist government of Kerala was thrown out of power without valid reasons.

3) In 1984, Governor of Andhra Pradesh dissolved the government on the ground that NTR (N T Ramarao), the then Chief Minister was abroad for medical treatment.

6) In 2016 the Governor of Uttarakhand gave government time to prove the majority but dissolved the assembly 1 day before. The basis of the decision was a sting operation released by media. The governor assumed that existing Chief Minister will offer bribe to the MLAs to support him.

8) 2017, Governors of Goa and Manipur did not invite the largest party to form the government. In Goa BJP got 13 seats, Congress got 17 seats. In Manipur BJP got 21 seats, Congress got 28 seats. Both places, BJP was invited to form the government.

9) In recent case of Maharashtra, around 40 MLAs of ruling Shiv Sena decided to go with opposition (BJP party). While the matter of defection of these MLAs was sub-judice, the governor asked Chief Minister Uddhav Thackery for a floor test. Fearing humiliation, Thakrey resigned and the leader of rebel MLAs Eknath Shinde sworn in as new Chief Minister. Later Supreme Court ruled that the decision of Governor to direct the floor test was illegal. However, nothing could be done since Thakrey had already resigned.

Above analysis show, whichever is the ruling party at union, it tends to misuse the position of governor.

According to legal experts like Gautam Bhatiya, it would be a great service to the nation if we abolish the post. However, since that is not possible because of the parliamentary system, it would be better to reform the post.

1] Reform the system of appointment.

Governors are appointed by Union. The bigger problem is constitution hardly mentions the qualification. Only two qualifications - Must have completed 35 years of Age, Citizen of India.

The issue was raised in the assembly. Pandit Thakur Das Bhargav asked Pandit Nehru, we should provide specific qualifications to prevent misuse. Pandit Nehru assured that there is nothing to worry, healthy conventions will be followed. What conventions? 1) Eminent persons. 2) Governor will not be from the same state. 3) No active political or administrative background.

Spoils system was introduced. Means appointment of favorites. The post of Governor became the post of rehabilitation for the rejected politicians. The politicians losing elections have been made governors and have been used to undermine the Chief Ministers elected by the people.

Besides this, ex-Bureaucrats including judges have been appointed even without cooling period.

What is to be done?

1) Since healthy conventions have not been followed, it is better to write the qualifications in black and white.

2) Rajamannar committee of Tamil Nadu Govt., Sarkaria Commission, 1st ARC, 2nd ARC suggested prior consultation with the Chief Minister. If Chief Minister is not comfortable, such person should not be appointed.

3) Punchhi commission suggested to use the platform of inter-state council, prepare a panel, appoint Governors in auto-pilot mode.

Above suggestions can improve the situation.

As far as removal of Governors is concerned, Governors are at the pleasure of President, which means Union govt. In this context, Supreme Court's Ruling in B. P. Singhal vs Union of India case 2010 has made the necessary amendments. 1) According to Supreme Court, pleasure doctrine for removal is acceptable. 2) Union should retain the power to remove the Governor, whenever it become necessary in its point of view. 3) No need to give reasons to the governor, no need to give opportunity to the governor to present his case.

However, 1) Governors should be allowed to complete their terms. 2) Governor adheres to an ideology different from the ideology of ruling party at the union is not a basis to remove governor. 3) The decision of the union executive is subjected to the judicial review.

1] Hargovind Pant vs Raghukul Tilak case 1974. The judgement was given by constitutional bench, with unanimity. 1) The office of Governor is a constitutional office of dignity. 2) Even when Governor is appointed and removed by Union, he is not employee of Union. 3) He is not answerable to Union for the conduct of the duties of his office. 4) Discretion of the Governor should be Governor's discretion and not Union government's discretion.

2] Rameshwar Prasad vs Union of India case 2006. Supreme Court expressed concerns over the state of the institution. Held that the office of Governor is a office of dignity. Governor takes the oath to preserve, protect and defend the constitution and to serve the people of the state.

3] D C Badhawa vs State of Bihar. Ordinance making power of Governor. The ordinance making power cannot be the basis for bypassing the power of parliament or legislature. It will be treated as 'colourable exercise' and fraud on the constitution. It is within the scope of judicial review.

In a recent landmark judgment on April 8, 2025, in the case of The State of Tamil Nadu v. the Governor of Tamil Nadu & the Union of India (2025) , Supreme Court clarified the constitutional boundaries of a Governor's powers concerning state legislation.

However, before getting into the SC judgement, let us understand the powers of governor concerning Bills.

1] Article 200

Article 200 of Indian Constitution holds that that when a Bill has been passed by the Legislative Assembly of a State and is presented to the Governor and the Governor shall declare:

• Either that he assents to the Bill or
• He withholds assent therefrom or
• He reserves the Bill for the consideration of the President.

Additionally, Governor can also return the bill for reconsideration of assembly. However, once such bill is presented to the governor again (with or without changes), Governor cannot withhold his assent.

2] Application of Article 200

In practice, the 2 nd provision i.e. withholding assent to the bills was used by governors as Pocket veto i.e. indefinitely holding the bill without either returning or passing to the President's consideration.

In light of such misuse of powers. Tamil Nadu government approached Supreme Court.

3] Supreme Court Judgement

• The Supreme Court found under the Constitution, Governors were entitled neither to exercise a veto nor a pocket veto over the State Legislative Assembly's Bills. Nor could Governors first return a Bill to the State Legislature, and then refer it to the President.
• The President, as well, when considering State Bills, could not withhold their assent unless there was a constitutionally-sanctioned reason for doing so .
• Supreme court further laid down specific timelines within which the Governor and the President were required take action on State Bills.
• Further, in this specific case, having found that the Governor had acted without bona fides, and that years had passed since the Bills were first sent to his office, the Supreme Court invoked its power to do "complete justice" under Article 142 of the Constitution, and held that these Bills were deemed to have been passed, and were now law.

Many of the Governor related provisions were not extensively written down by the constituent assembly. It was left to the constitutional conventions. The system relied on the good faith. However, it was prone to misuse and it extensively happened. The provision needed a correction and Supreme Court have done that.

However, by prescribing a timeline, Supreme Court has crossed its mandate and gathered more power for itself. Such intervention is not sustainable in the long term. The recent judgement is only a band-aid and an urgent discussion on the outdated provisions of Constitution is needed, starting with the office of Governor. Reference

Governors can do great good if they are good governors. They can do great harm if they are bad governors. - Soli Sorabjee in his book 'Sage or Saboteur'

The importance of Governor has increased because of rising internal security challenges. Discretionary powers cannot be used in arbitrary manner. - Punchhi Commission

Former prime minister Manmohan Singh gave four mantras to the Governors in Governors conference. 1) You are the sole judge of what is right and what is wrong. 2) You have to see what is in the best interest of the country. 3) It is your judgement to understand mandate of the constitution. 4) It is your obligation to understand what people expect from you.

Apart from politically elected executives, bureaucracy or the administrative machinery remains an important part of executives. This wing is often called as civil service, to create a clear distinction from the military service. Bureaucracy consists of trained and skilled officers who work as permanent government employees, and assist ministers in formulating and implementing policies.

The administrative machinery Includes all-India services, state services, and local government employees. The recruitment of these is done through the Union Public Service Commission (UPSC) and State Public Service Commissions. The recruitment is done based on merit, with provisions for reservation for weaker sections.

While the elected representatives and ministers oversee the administration and the legislature exercises control over the administration, administrative officers must adhere to policies set by the legislature. It is expected that the bureaucracy will be politically neutral. It must implement policies of the current government regardless of political changes.

Indian Administrative Service (IAS) and Indian Police Service (IPS) serve as the backbone of higher-level bureaucracy in the States. While these are appointed by the central government but work under State government supervision. However, the central government retains disciplinary control.

• Political Interference: Across the spectrum, political interference is regarded as the biggest cause that inhibits the full potential of Indian bureaucracy. Civil servants often face pressure to align with political agendas, compromising their impartiality and efficiency.
• Corruption: Widespread corruption at various levels, leads to inefficiency and loss of public trust.
• Red Tape and Bureaucratic Delay: Excessive procedural formalities and paperwork result in delays. Inefficient processes hinder timely implementation of policies and delivery of services.
• Lack of Accountability: The government policies are often designed to address multifaceted issues that require comprehensive, long-term strategies. As a result, the goals set forth in such policies are broad and ambitious, making it difficult to translate into specific, actionable objectives for bureaucrats. This results in a situation where there is no proper performance metric for bureaucrats. This makes it difficult to hold bureaucrats accountable.
• Centralized Decision-Making: Concentration of decision-making power at higher levels, also leads to inefficiency and disconnect from local issues.
• Poor Work Culture and Low Motivation: Bureaucratic work culture often marked by complacency and lack of motivation. Performance-based incentives and promotions are rare. This discourages the new recruits, perpetuating the system.
• Insensitivity to Public Needs: Bureaucrats are often perceived as being unapproachable and insensitive to the needs of ordinary citizens. Public services are not always citizen-friendly and there is public fear and perceived insensitivity of bureaucrats.
• Ensuring Bureaucratic Accountability: Strengthen mechanisms for accountability, such as performance evaluations and public feedback systems. This can also be done by more initiatives on the line of RTI act.
• Reducing Political Interference: There needs to be stricter guidelines to protect civil servants from undue political interference. This can also be done by laying down clear guidelines, in matter of appointments and transfers of civil servants.
• Simplifying Procedures and Reducing Red Tape: These is need to streamline administrative processes to reduce delays and inefficiencies. There needs to more initiatives in areas like e-governance and digitalization of public services.
• Improving Training and Capacity Building: There needs to be provision for continuous training programs to equip civil servants with modern governance skills. Additionally, civil servants also need to be trained in in public relations and customer service, to make them more approachable.

By addressing these issues and implementing the necessary reforms, the Indian bureaucracy can become more efficient, transparent, and responsive to the needs of the public, thereby enhancing the overall effectiveness of governance in the country.

State Legislature

Since the Indian system is modelled neither on purely British nor American system, there emerged a big gap in theory and practice, inviting controversies.

Case studies from India

• Dr. Luis Proto Barbosa was the Speaker of the Goa Legislative Assembly. In 1990, while holding the Speaker's position, Barbosa resigned from the Indian National Congress (INC) party. He, along with six other members, formed a new party called the "Goan People's Party: and became the Chief Minister.

Conclusion

In order to arrest the death knell of parliamentary democracy, India should shift towards the British model.

Defection is a problem in a parliamentary system. It creates political instability. If the members of ruling party defect, party may lose the majority. Defection also leads to corruption as ruling party can push the members of other party to defect in return of ministerial post. Defections are breach of trust with the voters. In India defection is such a huge problem that 'Aaya Ram, Gaya Ram' became the idiom of Indian politics.

52nd constitutional amendment, 1985, introduced anti-defection law. Rajeev Gandhi govt. came to power with absolute majority. However, he was unable to provide the leadership and within a short time, MPs started leaving the party. There was a fear that the ruling party will lose the majority. Hence anti-defection law was brought in the interest of the ruling party.

Consequently, anti-defection law contains loopholes which favor the ruling party. e.g. The ultimate power to determine the defection has been invested in the speaker and the speaker's decision was kept beyond the scope of judicial review.

However, in Kihoto Hollohan case Supreme Court has declared paragraph 6 & 7, null and void because it takes away the power of judicial review, which is the basic structure. Supreme court pointed out that in India we cannot consider the post of speaker as neutral. 91st AA 2003 was introduced to address some of the loopholes. Thus, now the decision of speaker on the matter of defection is not final and is subject to judicial review.

It applies to the members of both the houses. Anti defection law applies to all members including speaker, deputy speaker, vice chairman. Anti-defection law applies to all the three categories

• Members elected on the party seat.
• Nominated members.
• Independents.
• For member elected on party sea - If they vote against the whip issued by the party. Exemption: members are not disqualified if they have taken prior permission or if they have requested the party to condone their action within 15 days and party has condoned them.
• If they voluntarily give up the membership of the party. Exemptions: 52nd AA banned individual defections but permitted defections in group. It mentions 2 situations where defection is allowed. 1) Split - if 1/3rd of the members come out of the party, it is called split. 2) Merger - if 2/3rd of the members come out of the party. In both situations, defection was allowed. However, the 91st AA 2003 has ended the exception related to split and continued the exception meant for merger.
• Defection in case of independents Independents are not allowed to join any party as it will be fraud on voters.
• Nominated members - nominated members are of two types. Members of a party at the time of nomination. For these, similar rules will apply which apply in case of elected member
• Not a member of any party at the time of nomination. Such a member has a freedom to join any party within 6 months from the date he assumes the office but not after the expiry. After six months, it will be a defection and such a person will be disqualified.
• Case of speaker, vice chairman and deputy speaker They can resign after elected to the post
• In case they are removed or resigned from the post, they can join only their original party or remain independent.
• They are not allowed to join any other party, it will result into defection.

As per 52nd AA, Speaker will be ultimate authority to decide on the matter of defection. Speaker's authority cannot be challenged even in courts.

However, in Kihoto Holohan case, Supreme Court held that the decision of the speaker comes within the scope of judicial review. As per Art 122, courts cannot intervene in the legislative proceedings but in above case Speaker's action is not legislative, Speaker acts as a quasi-tribunal. Hence it comes under the scope of judicial review.

When the proceedings against speaker on the grounds of defection are taking place, speaker cannot disqualify the members e.g. case of Arunachal Pradesh. Nabam Rebia disqualified 16 members even when proceedings against him were going on.

View of Supreme Court - Speaker has been given power to strengthen democracy and not to stifle democracy.

Ravinayak case - Judiciary will not question the rules made by speaker or procedures but judiciary will question on the ground of 'mala-fide' intentions.

Instead of making speaker as the final judge, it is better if the disqualification is determined by election commission like in case of disqualification of MPs and MLAs in other situations.

Anti defection law contradicts not only fundamental right but privileges of parliamentarians with respect to freedom of speech and expression. Law commission has suggested to restrict the use only in case of 1) Motion of thanks. 2) No confidence motion. 3) Confidence motion 4) Adjournment motion.

It brought split within the definition of defections.

It made the number of ministerial posts limited. 15% of total number of members.

It added Art 361B: A person disqualified under anti-defection law is also disqualified from being appointed to any office or remunerative post - under any government, Union or State. The disqualification applies till a) The term of the house for which he is disqualified. b) Or till he gets re-elected.

Constitution provides for the disqualifications for MPs and MLAs. Under Art 102. Disqualification on the ground of 'office of profit' is the first disqualification mentioned.

Separation of powers or to avoid conflict of interest. Parliament is an institution of establishing the accountability of executive. Executive can make inducements to the MPs or MLAs by offering them remunerative posts or such posts which are wielding power. Thus, it will destroy the separation of powers and the role of parliamentarians to ensure accountability.

Another logic is that it is not possible for a same person to be present at two places at the same time. Member of Parliament should give ultimate priority to his responsibilities as a parliamentarian. That is why they even have certain privileges e.g. MPs cannot be even arrested 40 days before and after the session of Parliament so that the work of parliament is not be affected.

Executive has been appointing MPs and MLAs on such posts but they are not being disqualified.

Since 91st AA, which limits ministerial posts, it has become a way to bypass 91st AA by offering such posts like parliamentary secretaries which are not technically ministerial posts.

Another problem is, lot of arbitrariness prevails. In context of disqualifying, there is a huge variation from state to state. e.g. in 2108, parliamentary secretaries appointed by AAP govt. in Delhi were disqualified, whereas many other states continue to have posts but have not been disqualified.

President who shall act according to the opinion of Election Commission.

This leads to arbitrary manner of exercise and puts question-mark on even the independence of the Election Commission.

1] Constitution does not define the office of profit. However, constitution exempts certain posts like the ministerial posts from subjected to disqualification on the ground of office of profit. Because in India ministers are chosen from among the members of parliament.

2] The existing law is inadequate.

Pandit Thakurdas Bhargav committee repealed earlier laws (1950,51 & 53 act) and gave a new act - Prevention of Disqualification Act 1959. This act contains two provisions. 1) It suggests that if any office gives only compensatory allowance, it will not be treated as 'office of profit'. 2) The act mentions number of offices which are exempted.

In the absence of clear law, it has created scope for judicial interventions. 2| 1959 Act has been continuously amended, in 1993, 2000, 2006, 2013. By amendments more and more posts are brought under the act.

Now and then the controversy related to office of profit keep on emerging. Governments exempt the office with retrospective effect. It is a paradox that judiciary upheld the validity of putting the offices in the list with retrospective effect.

Almost every office is exempted that the condition of disqualification on this ground, itself has become irrelevant.

There is a need to either bring a comprehensive law and it should not have the implementation with retrospective effect or do away with the provision itself.

Does it make sense in case of India?

The disqualification on the ground makes sense only in presidential form of govt. Because of the principle of separation of powers. Art 1(6) of US constitution strictly prohibits the members of Congress from accepting any inducements.

In India, parliamentary system exists. In parliamentary system, parliament holding executive accountable is a farce. The party which has majority in the house forms the govt. Prime Minister is the strongest elected head in the world. He is a leader of both - legislature and executive. It would be naive to think that the private members of the ruling party (which are not in govt.), and which are offered such offices, will be holding the members of their own party in government, accountable.

Office of profit as a disqualification is also irrelevant in light of anti-defection law. Members of the party cannot vote against the party.

Is the office of profit as a disqualification exists in Britain, which is also a parliamentary system?

Officially yes. But practically no. There is a historical reason to put it as a disqualification in Britain. It emerged as a result of the tussle going on between King and Parliamentarians. When King used to have powers, through inducements King was trying to bring MPs to his side. Now King is just a constitutional head. Even without written constitution Britain follows parliamentary culture. (The parliament act of 1707 put restrictions on MPs accepting any remuneration from the crown.) Hence in case of India also either the number of offices exempted have to be reduced or abolish the provision itself. We should not ignore the practical politics, for theoretical niceties.

Since law is inadequate, it is determined by judiciary from time to time. Judiciary has adopted 5 broad principles.

1) There has to be an office.

2) It should be office of profit.

3) It should be under govt.

4) Person should have held the office.

5) Office is not exempted by the parliament.

Ashokkumar Bhattacharya vs Ajoy Biswas case 1985. Judiciary will interpret the office based on facts and circumstances in each case. It will take practical approach rather than strict legalistic approach. (Pedantic approach - literal/strict approach).

Judiciary will see whether appointing authority is govt, whether govt. has power to terminate, whether govt. determines remuneration, whether source of remuneration is public purse, whether govt. controls the office with respect to the manner in which duties of the office are to be performed, whether the office brings person under the influence of govt. by patronage.

All factors need not to exist simultaneously. Which factor is relevant in which case will be determined by judiciary.

Jaya Bachhan Case - Whether person has actually obtained any monetary compensation does not matter. It is enough if office is capable of yielding remuneration. However, a person acquires a contract for the work which govt. ordinarily performs will not be treated as office of profit like acquiring gas agency.

Kanta Kathuria Case - Office should be independent of the holder. Hence the office of public prosecutor will not be office of profit.

Shibu Soren Case - Whether compensation bring person under the influence of govt. will be seen.

Divya Prakash Case - Even when appointment is honorary, it can be a office of profit.

Since the controversies keep on emerging, parliament has set up a joint committee to continuously scrutinize. Committee applies two criteria. 1) Remuneration is more than compensatory allowance. 2) It brings person under influence and patronage.

Privileges are the special rights which are available to few. Privileges are given to the parliamentarians or legislators in all democracies so that they can perform their responsibilities efficiently without fear. Privileges represent the dignity of the house. Hence house is given power to punish the person in case of 'breach of privilege'. It is treated as contempt of the house.

One of the most universally available privilege is freedom of speech and expression. One of the strongest traditions of this privilege is in USA. In USA, there is concept of filibustering. It is a privilege of senators. Senators engaging in a filibuster can speak for hours, days, or even weeks on end. There is no strict time limit on how long a senator can speak.

It is an extreme example of the privilege of the senator. In India Art 105 and 194 provides for the privileges. It mentions 1) Freedom of speech and expression. 2) Exemption from liability with respect to anything said or any proceedings or any vote given in parliament. e.g. There cannot be any case of defamation against the members for what they said in the house. Similarly, nobody will be punished for publishing any report under the authority of the house. 3) Art 122 Prohibits Judiciary from intervention in the proceedings of parliament.

Constitution does not give the exhaustive list, leaves it on the parliament to define its own privileges. Till parliament does not codify, the privileges found in Britain's house of commons will be treated as applicable.

Privileges are available to MPs as an individual, houses collectively, to the committees and its members.

This issue was debated in the constituent assembly and Dr. Rajendra Prasad emphasized on the need to codify parliamentary privileges as he was skeptical that they will never be codified. Lord Cairns once remarked that 'the most important privilege of the parliamentarians is not to codify privileges'.

It creates huge uncertainty with respect to the exercise of freedom of speech and expression of ordinary persons but specifically over the freedom of press. On number of occasions, journalists have been punished for the breach of privilege in an arbitrary manner just for criticizing the policies of govt. e.g. Recently activist Abhijit-Iyer Mitra was arrested for his derogatory remarks on Odisha, under contempt of Odisha Assembly.

Press is known as 'fourth estate'. It is absolutely essential that freedom of press exist to protect democracy. Since privileges are not codified, there is no clarity over what journalists can write or cannot. It also results into involvement of the judiciary now and then in the decision of the house because the power is exercised in an arbitrary manner.

It is a big challenge for judiciary because on one hand it is a protector of fundamental rights and on the other hand, it has to give recognition to the provisions of the constitution.

Whenever there is a contradiction between two provisions of the constitution, judiciary goes for 'harmonious construction' approach. Approach of judiciary is changing.

• In Searchlight case (aka MSM Sharma Vs SK Sinha case) 1959. SC has upheld the primacy of privileges over FRs.
• In Keshavsingh case, court opined that the verdict in Searchlight case is not a general norm. Fundamental rights can be given primacy. However, all rights will not have primacy. Art 21 will have primacy but Art 19 does not have.
• In Raja Rampal Vs Lok Sabha speaker 2007 case, Supreme Court remarked that Art 20 & 21 both will have primacy but not Art 19.

It would be in the interest of democracy if privileges are codified

• It will achieve balance between FRs and Privileges.
• It will restore the dignity of house as judiciary will not have scope for intervention. Privileges in India without codification is like following the British principle of sovereignty of parliament whereas in India constitution is supreme.
• MPs are representatives of the people, and cannot claim more power from the people themselves.
• In USA privileges are not codified but there is no system of punishment for the breach of privilege whereas in India journalists have been imprisoned for years together.
• Recently Australia has codified the privileges.

High Courts

[The topic has been dealt in detail under 3] Salient Features of Indian Constitution -> Judicial Review and Basic Structure Doctrine. Please study that topic along with this.]

"Everything has been said already, but as no one listens, we must always begin again." (Andre Gide) - Quoted in Justice Malimath Committee's report

• The retirement age for Supreme Court is 65 whereas that for the High Courts is 62. The age difference is exploited like a carrot for High Court judges by executive as well as judges of Supreme Court. It should be made same for both the courts.
• Post-retirement appointments are a deterrent to an independent judiciary. The first law commission itself has pointed it out that there should not be any appointments after retirement. If age is a criterion to assume that person is rendered unsuitable to continue as a judge, how can he be given other posts? And if that is not the case due to higher life expectancy, it would be better to increase the retirement age of judges.
• Appointment of Chief Justice of India - Even today, the chief Justices of India are appointed on basis of seniority rather than merit. This is not a very good criteria for the highest post of the nation. Chief Justice should have qualities leadership and administrative. Seniority doesn't ensure that. This was also one of the recommendations of 1st law commission.
• The collegium system, which has evolved as a result of Three judges' cases, have no constitutional basis. It has failed and led to nepotism and favouritism. Many eminent jurists like Fali S Nariman, Ruma Paul, SS Sodhi have openly expressed their dis-satisfaction with the system. The parliament tried to remedy it in 2014 by 99th CAA, however the amendment was struck down as violative of basic structure (judicial independence).
• The appointments in State Judicial Services at present are done by Governor in accordance with the rules framed with respective State Public Service Commission and High Court. This has introduced arbitrariness. The establishment of Indian Judicial Services will not only attract better talent, but is also a necessity of time. For this, Rajya Sabha needs to pass a resolution to the effect under Art 312, and Parliament is then free to legislate.
• Apart from these, the other reforms include speedy delivery of justice, the unaffordable cost of litigation, the complex judicial process, the use of English language exclusively in higher judiciary, the pending vacancies in judiciary across country, strengthening and empowering ADR (alternate dispute resolution), using technology for maintaining records, accepting fees etc.
• Justice Madan Lokur, former Judge of Supreme Court of India suggests that we need a bottom up approach in judicial reforms. Most of the litigants come in contact with judicial system at district courts. The principal problems lie at this level. Unless these problems are addressed, an average Indian will continue to suffer.
• Reforms at Local level The infrastructure and facilities of local courts needs to be improved
• Identify pending cases and status of each - many such cases can be disposed of within minutes with some assistance from prosecution.
• Our courts must embed the practices of case and court management. It is management of law suit as it proceeds till resolution to optimize the time.

Keeping the judicial system relevant through reforms is essential to enhance efficiency, and maintain public trust. It is suggested that justice delayed is justice denied. Judicial reforms can address backlog of cases, and improve judicial infrastructure to ensure that justice remains accessible, timely, and fair for all citizens.