India's Constitution and Parliamentary Government

The form of government that has been adopted in the Indian Constitution is the Parliamentary Government of the British type. Basu writes that the makers of the Indian Constitution rejected the Presidential system, such as the one that exists in the US, on the ground that under such a system, “the Executive and the Legislatures are separate from and independent of each other, which is likely to cause conflicts between them, which our infant democracy could ill-afford to risk.” [1] The separation between the two branches in India is partial and Constitution has not expressly put any one institution in a position to dominate the others. Consequently, it is difficult to ascertain which institution would prevail in the event of a conflict between the Legislature and the Executive.

The relationship between the executive and the legislature forms the focus of this paper as the author attempts to determine which institution of government would prevail in a conflict. The present paper will focus on the relationship between the Executive and Legislature, mostly at the level of the Union. With the objective of determining which institution would prevail in case of a conflict, the paper shall begin with an exploration of the nature of the separation between the Executive and the Legislature of the Indian Union. It shall then identify some areas of conflict between the two and also outline the different constitutional mechanisms used by each to control the other. Through this, the author hopes to obtain an answer to the question posed above.

Nature of Separation between the Executive and Legislature

Even though India has incorporated the doctrine of separation of powers, the separation that the Constitution-makers adopted is a partial one since the Constitution-makers did not intend for the Legislature and the Executive to be completely separate and independent of each other.

Composition of the Executive and the Legislature at the Union

As per the Constitution, the Union Executive consists of the President, the Vice-President, the Council of Ministers to aid and advise the President and the Attorney General. Article 53 provides that the Executive Power of the Union is to be vested in the President and may be exercised by him directly or through officers sub-ordinate to him. It also gives the President Supreme Command over the defense forces. The Vice-President acts as the President if there is a vacancy caused in the office due to the President’s death or any other reason. According to Article 64, the Vice-President is the ex-officio Chairman of the Council of States. Thus, his functions are partly legislative in nature. Article 74 provides that there shall be a Council of Ministers, with the Prime Minister as its head, to aid and advise the President and the President shall act in accordance with such advice. The Union Parliament consists of the President and the two Houses i.e. the Council of States and the House of the People. [2]

It is worth noting that real executive power vests with the Council of Ministers. Case law holds that the President must always act on the aid and advice of the Council of Ministers and any exercise of executive power, not in accordance with such advice is liable to be set aside. [3] However, Justice Iyer, without intending to be exhaustive, referred to certain exceptions [4] such as the choice of a Prime Minister, dismissal of a Government which has lost its majority in the House or the appointment of judges. Moreover, according to Article 361, the President cannot be sue or be sued in respect of any executive action. This is because he does not perform executive action personally or individually. It is usually carried out by the Government of India in the name of the President in accordance with the rules of business articulated in Article 77. [5]

The Council of Ministers consists of the members of the legislature (15% of the strength of the House of the People [6] ) and it may be said that, the Cabinet enjoying a majority in the legislature concentrates in itself the virtual control of both legislative and executive functions and as the Ministers constituting the Cabinet are presumably agreed on fundamentals and act on the principle of collective responsibility, the most important questions of policy are all formulated by them. [7] Thus, the conflict between the authority wielding the executive power and the legislature is reduced to minimum.

Functions of the Union Executive and the Legislature

However, this view is not entirely correct since conflicts between the Legislature and the Executive have arisen in certain areas, which will be dealt with later. Also, the functions of the two institutions differ vastly. It is worth noting that nowhere in the Constitution, can one find a formal definition of legislative, executive or even judicial functions. It is the courts that have endeavored to define these functions

Case law has defined legislative power as the power to create rights, powers, privileges, or immunities, and their correlatives, as well as status, not dependent upon any previous duties, rights, etc., i.e., apparently, the power of creating antecedent legal capacities and liabilities. [8] Executive power has been defined as connoting the residue of governmental functions that remain after legislative and judicial functions are taken away. [9]

Article 73 provides that the executive power of the union is co-extensive with legislative power and extends to all matters on which the Parliament has power to legislate i.e. the Union List. Unless expressly provided in the Constitution or by any law of the Parliament, the executive cannot act on a matter enumerated in List III. However this does not mean that the executive can act only after the Parliament has legislated on a particular subject. The language of Article 73 suggests that the powers of the Executive extend to matters upon which the Legislature is competent to legislate and are not confined to matters over which legislation has been passed already. [10] Further, an executive act may have the same force of law as legislation because even though issued by an executive authority, the Courts are, if challenged, bound to recognize and give effect to the authority conferred by it. [11]

Overlapping Functions

The Supreme Court in Jayantilal Amrit Lal Shodhan v. F.N. Rana and Ors. [12] , recognized that the Constitution has not made an absolute or rigid division of functions between the three agencies of the State. For instance, in the performance of the executive functions, public authorities issue orders which are not far removed from legislation and make decisions affecting the personal and proprietary rights of individuals which are quasi-judicial in character. Further, the executive can be empowered by statute to perform legislative or judicial functions or even functions that cannot be classified under any one of the three heads. Indeed, the court was of the opinion that, “In the complexity of problems which modern governments have to face and the plethora of parliamentary business to which it inevitably leads, it becomes necessary that the executive should often exercise powers of subordinate legislation.”

Due to paucity of space, the present section shall only deal with instances where the Executive performs Legislative Functions and not also with vice-versa. There are three instances where the Executive performs functions that seem Legislative in nature:

Delegated legislation

The power given to the executive to supplement laws made by the legislature is derived from delegation made under specific enactments. This power to supplement legislation is called delegated legislation. [13] Every delegate is subject to the authority and control of the principle and the exercise of delegated power can always be directed, corrected or cancelled by the principal. Hence parliamentary control over delegated legislation should be a constitutional necessity. [14] The limitations against the delegation of powers by the legislature to another authority have been settled by Courts. In Delhi Laws Act, 1912, Re [15] , the Supreme Court held that the ‘essential legislative function’ cannot be delegated. The essential legislative power consists of the determination or choice of the legislative policy and of formally enacting that policy into a binding rule of conduct.

Emergency

In the event of declaration of emergency in a state, the Executive assumes to itself the functions of the Government of the state. A Proclamation of Emergency is issued by the President and may be revoked at any time by a subsequent proclamation. If the President believes, because he has been so advised by the Governor or has himself decided, that a unit cannot be governed according to the Constitution, he may by Proclamation declare a state of Emergency upon that unit. [16]

Ordinance-making Power

Article 123 prescribes the Legislative Power of the President to promulgate Ordinances during the recess of the Parliament. Such Ordinances have the same force and effect as an Act of Parliament. However, each Ordinance must be laid before both Houses for approval and ceases to operate if it is disapproved of, or if it is not approved of within the expiration of six weeks from the reassembly of Parliament. The purpose of this Article is to provide machinery for legislation during the period the Parliament is not in session, in order to meet extra-ordinary situations that demand immediate enactment of laws. [17] Article 213 provides the same power to the State Executive. Dattar writes that an Ordinance is usually replaced by an Act, or ceases to operate if disapproved by the Parliament (or State Legislature). [18]

Areas of Conflict

Two areas where conflicts between the executive and legislature have arisen in the past are:

With respect to the Executive’s power to promulgate Ordinances under Articles 123 and 213

The power of the Executive to promulgate Ordinances is co-extensive with that of the Legislature and the President (or Governor) exercises it when he is satisfied that the circumstances render it necessary. [19] In D.C. Wadhwa v. State of Bihar [20] , the Ordinance-making power of the executive was being misused by the Government of Bihar. It had become a settled practice of the Bihar Government to repromulgate on a large scale, Ordinances with substantially the same provisions, immediately at the conclusion of each session of the State Legislature. In the words of the judgment, the Governor was taking on the power of the legislature to legislate since the Ordinances did not have the approval of the Council of Ministers. The Supreme Court held that this amounted to a usurpation of the legislative function by the Executive since the Executive could not continue the provisions of the Ordinance in force without going to the Legislature because otherwise, the people would be governed, not by laws made by the Legislature, but by laws made by the Executive. Further, it was a colourable exercise of power by executive and constituted a fraud on the Constitution, since the executive was doing indirectly, what it was not allowed to do directly.

With respect to the signing of International Treaties, Agreements or Conventions

Article 253 provides for legislation in order to give effect to international disputes. In Maganbhai Ishwarbhai Patel v. Union of India [21] , the Supreme Court held that the effect of Article 253 is that if a treaty agreement or convention deals with a subject within the competence of the State Legislature, the Parliament alone has, notwithstanding Article 246 (3), the power to implement it, despite the executive being competent to represent the state in all matters international and may by agreement, convention or treaties, incur obligations which, in international law, are binding upon the State. Such obligations are not by their own force binding upon Indian nationals. The Court pointed out that the power to legislate in respect of treaties lies with the Parliament under Entries 10 and 14 of List I. It is worth noting that the making of law under List I, is necessary only when the treaty operates to restrict the rights of citizens or modifies the laws of the State. If the treaty does not do either of the above, the executive is competent to exercise the power.

From the two examples of given above, it becomes clear that the Courts have tended to enunciate principles in manner that limits the exercise of power by the Executive and makes it accountable to the Legislature. It must be pointed out that this is in keeping with the makers of the Constitution, who wished for the Executive to be kept under control. [22] This is why the Constitution itself provides for the approval of an Ordinance or a Treaty by the Parliament, though the initial actions were taken by the Executive.

A hypothetical conflict between the Executive and the Legislature has been given by M. P. Singh where he envisages a conflict arising with respect to the issuance and revocation of a Proclamation of Emergency. He writes that, “It may be argued that the President may continue the period of Emergency by issuing a fresh Proclamation of Emergency every one month and thus bypass the Parliament for its approval of the Proclamation and in such an event, either a vote of no-confidence may be passed by the Parliament and the Council of Ministers may be thrown out of office or the President may be impeached in Parliament and thrown out of office.”

While the two examples chosen above work out in a manner which is favourable for the Parliament, it does not mean that the Parliament is in a position to dominate the Executive. Any authority that the Parliament exercises is subject to the Constitution and the Parliament cannot transgress these limits. Thus, the Constitution has ensured that a system of checks and balances is maintained.

Forms of Control

It has been recognized that the Parliament exercises some control over the executive. The Parliament exercises control over the Cabinet in two ways: (a) by expressing want of confidence in the Government and (b) by its control over finance.

The Government depends on the continued support of the majority in the Lok Sabha. Bhattacharya writes that it must resign if the Lok Sabha expresses its want of confidence in the Cabinet by: (a) passing a no-confidence motion, (b) passing an adjournment motion, (c) rejecting a proposal which the Cabinet considers vital to its policy and (d) refusing to vote grants or defeating the government on a financial measure. However, it is worth noting that no government formed by a single majority party has been overthrown by the Lok Sabha. [23]

While effective, the Lok Sabha’s power to exercise financial control over the Executive is limited. No taxes can be levied or expenditure, incurred, by the Government without the authority of law i.e. without Parliamentary sanction. [24] According to Bhattacharya, the Government requests for funds and the role of the House is to grant (or refuse to grant) such request, such request. The House must also control the expenditure of money so granted. [25]

However, the Executive too has some measure of control over the Parliament. Under Article 85(2), the President may (upon the advice of the Prime Minister) dissolve the House of the People. This does not mean that the Council of Ministers also ceases to exist. It was contended in U.N.R. Rao v. Indira Gandhi [26] , that the Council of Ministers is also dissolved if the House of the People is. The Appellant reasoned that under Article 75(3), the Council of Ministers is to be responsible to the House of the People and if the House has been dissolved, then how can the Council of Ministers be responsible to it. The Court, harmonizing Article 75(3) [27] with Articles 74(1) [28] and 75(2) [29] , held that Article 85(2)(b) must be read as meaning that Article 75(3) only applies when the House of the People does not stand dissolved or prorogued.

Granville Austin gives the following hypothetical situation conjured up by Professor Alan Gledhill, a distinguished foreign authority: “A President who has been abusing his powers learns that the Parliament intends to impeach him. Therefore, before the stipulated lapse of two weeks, he dissolves the Parliament. If a new Parliament is elected, the President need not summon it for six months and in the meantime may, dismiss his Council of Ministers and appoint others of his choice, and himself govern the country by Ordinance. This situation would justify a Proclamation of Emergency and in this manner, the President could take control over the nation.” [30]

Austin is of the opinion that a ‘constitutional’ take-over would be impossible according to the constitutional practices existing in India. Firstly, the President could not dissolve the Parliament without the advice of the Prime Minister. His other actions, according to Granville could not be described as being constitutional either and such an occurrence would be a revolution. [31]

Conclusion

Granville Austin writes that the Constituent Assembly feared Executive Power. It feared that the Executive branch as a whole might become too strong and, ignoring the Legislature, take arbitrary action on its own or that the President might not behave as a constitutional head of the State. Thus, the Council of Ministers was made collectively responsible to the Legislature. [32] The President’s role as a figurehead is reflected in his indirect election. Nehru believed that if the President was elected by adult franchise and yet was not given any real powers, it would become anomalous. [33] The Parliamentary system was chosen because it would produce a stronger government, for (a) members of the Executive and Legislature are overlapping, and (b) the heads of government control the Legislature. [34]

As per the doctrine of separation of powers, as it applies to the Indian Constitution, there is an implicit premise that power vested in a particular authority cannot be exercised by any other authority unless the Constitution so provides. The Constitution itself contains the provisions which enable the Legislative branch to check the power of the Executive and vice-versa. While it is true that the provisions of the two branches were framed keeping in mind the need to limit the power of the Executive, the constitution does not place any one branch in a position to influence the other to such an extent that it’s will extends over that of the other’s.