Montesquieu, the French political philosopher made three broad classification of State power -the legislative, the executive and the judicial so that there could be checks and balances in the exercise of power.
In a democratic form of government, the chief source of state power obviously rests with the “Council of Ministers” headed by a Prime Minister or the Chief Ministers in the States.
The Cabinet, a small group among the ranks of Ministers decides state/national policies.
Parliament or State legislatures enact laws in pursuance of the said policies, and it is left to the executive to implement laws.
There are more than 30,000 laws in the country. International relations and matters of war and peace are decided by the Council of Ministers with the PM at its head. Judiciary interprets the Constitution and laws and checks abuse of State power by the executive.
It has also power to annul arbitrary laws, rules and regulations including constitutional amendments etc. While there is no doubt about the process of law-making falling within the exclusive domain of the Parliament and legislatures, there is no clarity even amongst the educated and learned when it comes to the exercise of executive power of the State.
Further there is crisis in governance when judiciary encroaches into executive domain.
Whenever there is an alleged miscarriage of justice, the people, intelligentsia included, tend to blame the political class for the sorry situation.
They overlook the role and importance of appointed institutions such as the bureaucracy, the police and various other investigating agencies, the security forces and intelligence agencies in the governance of the state.
The issue assumed significance when Mrs. Sonia Gandhi (Chairperson, United Progressive Alliance) lambasted the NDA govt in October 2020 for misusing the investigating agencies such as Police, Central Bureau of Investigation (CBI), Enforcement Directorate (ED) etc. leading to abuse of human rights and miscarriage of justice.
It is therefore necessary to visit some of the constitutional and legal provisions to determine who the villain is. Article 53 (1) of the Constitution says the executive power of the union is vested in the President and shall be exercised by him either directly or through officers subordinate to him in accordance with the Constitution. Art 74 (1) says there shall be a Council of Ministers with the Prime Minister at the head to aid and advise the President who shall in exercise of his functions, act in accordance with such advice.
Art 154 says the executive power of the state shall be vested in the Governor and shall be exercised by him either directly or through the officers subordinate to him in accordance with this Constitution. Art 163 says there shall be a “Council of Ministers” with Chief Minister at the head to aid and advice the Governor in the exercise of his functions except in so far as he is by or under the Constitution required to exercise his functions or any of them in his discretion.
Let me have a bird’s eye view of the legal scheme in which the “appointed” institutions have disproportionate share in the exercise of executive power. This needs to be stated loud and clear when the appointed institutions shift responsibility for failure of governance to the political class on the specious plea that they lack autonomy/independence in functioning.
The truth is the opposite. Even if more autonomy is granted, where is the guarantee that it will be used in “public interest”? Take the example of the judiciary in India- it is fully autonomous. It appoints Judges of higher judiciary through a legal fiction called the “Collegium” (a group of senior Judges).
Subordinate judges are selected by High Courts of States and formal orders of appointment are issued by the government. The Supreme Court and High Courts have power of effecting transfer of judges from one court to another.
Yet, its record for rendering speedy and honest judicial services has come to be questioned. I have mentioned the method of appointments in judiciary where the political class has no role or plays a secondary role. Now let me talk about the bureaucracy – a mammoth 30 million strong institution in the country.
The All India Services (Indian Administrative, Police, Revenue, Tax, Railways,
Postal services, etc.) are selected by the Union Public Service Commission – an autonomous body. At the state level, selection to the Bureaucracy is through State Public Service commissions which are also largely autonomous.
There is a set procedure for selection – a written test followed by an oral interview. I don’t think the political class can influence “selection” if the members of these commissions are honest and unselfish. After selection and formal appointment by government comes periodic promotion in career.
There also a set of rules and procedures exist, and senior bureaucrats and committees headed by bureaucrats play a larger role than politicians.
In the matter of promotion of State service officers to All India Services, a committee of officers headed by a UPSC member take decisions.
The next phase is transfer. For the sake of lucrative postings, bureaucrats sell their souls and toe the line of political masters. Even if 50 per cent of them were unselfish and honest, the politician would be handicapped in the business of transfers. Even in transfers, the Ministers or C.M are guided by recommendations of the head of the department, the regional and district heads.
They cannot simply overrule a recommendation for fear of adverse Court comments if the matter is challenged.
Chief Ministers have large discretion in choosing heads of departments. But in respect of others, they are guided by the recommendations of the departmental head. If the head ignores public interest in his recommendations, that is a different matter. But by and large, senior bureaucrats imbibed with spirit of honesty and public interest can shape for good the business of transfers.
In disciplinary matters such as suspension from service, removal and dismissal, bureaucratic and police leadership play a large role.
The AttorneyGeneral, State law officers like the Advocate General, public prosecutors at all levels in Courts as well as government pleaders etc. are appointed by the government.
They have such functions and duties as arguing cases, preferring appeals, withdrawing criminal prosecutions, etc. In all cases, the Minister is expected to be guided by their advice.
The government independently cannot withdraw criminal prosecutions without recommendations of public prosecutors, which means that honest and unselfish government law officers can play a large role in the justice delivery system.
There are many other appointed institutions such as Comptroller and Auditor General (CAG) and the Election commission (EC) which are largely autonomous made possible through the evolution of case law by the Supreme Court.
Yet there are certain election commissions whose functioning has been erratic due to self-interest. A committee or a board of officials is envisaged in most of the laws.
The decision of the Minister is guided by the recommendation of the committee.
A building, a gun license or a mining lease license are given by officials. Granting without admitting that the villain of the piece is the politician in the system of governance, recent developments pursuant to Supreme Court decisions in the appointment and transfer of Director General of CBI or the various State DGPs, who enjoy a fixed tenure of two years (considered as encroachment in executive domain) have not proved productive.
Improvement in law and order, crime reduction, registration of crimes, detection of crimes, honest investigations, court convictions and overall general honesty in the organization has not improved a wee bit.
On the other hand, several Directors of CBI and DGs came out of the organisation in poor light. Let me dwell deeper into the legal scheme which confers disproportionate power on the appointed institutions. The Criminal Procedure Code 1973 deals with powers of police, courts and High Courts. It also deals with the powers of the District collector and other executive magistrates.
The Cr PC consists of 36 chapters. It deals with such subjects as the power of registration of crime by police, of investigations, arrest, search and seizure, power to release on bail and of charge-sheeting the accused in crimes.
Police have powers of preventive arrests and maintenance of peace and public order along with the District collector and Magistrate. Police have also power of preventive detention (without trial) as duly approved by a “Board” and government.
The Courts have power to enlarge accused on bail (in non-bailable offences). The Courts have power to grant anticipatory bail to accused.
They can conduct trials of criminal cases, convict and sentence accused persons to prison. High Courts have the power to quash a FIR as well as criminal investigation, both under Article 226 of the Constitution as well as under the provisions of Criminal Procedure Code. The power of appeal, reference and revision lie with unelected institutions of Police, prosecutor and Courts. Sec 44 of the Cr. PC gives powers to executive or judicial magistrate to arrest a person for committing offence in their presence.
They have power to conduct “inquiry” into police brutality cases or encounters with unlawful elements. As per Sec 97 if any person is confined to any place amounting to an “offence” the district magistrate or the Sub-divisional Magistrate may issue a search warrant to restore liberty to such a confined person. Courts have power for attachment or forfeiture of property obtained through commission of an offence (Sec 105c).
Any Executive Magistrate or officer in-charge of a police station can disperse an unlawful assembly by use of “force” (Sec 129).
According to Sections 130 and 131, powers of dispersal of unlawful assemblies is also conferred on Armed Forces Officers. Wide discretionary powers have been given to District Magistrates and Subdivisional Magistrate in the removal of public nuisance and in the maintenance of tranquility and public order.
No Minister has been empowered with such or similar powers.
The Maharashtra Land revenue Code 1966 provides that no land used for agriculture purpose shall be used for non-agriculture purpose except with the permission of the District Collector. The Urban Land Ceiling and Regulation Act 1976 gives the State government the power to grant exemptions which are carried out by civil servants.
The Indian Arms Act 1952 envisages Licensing Authorities and Appellate Authorities which are all “appointed” institutions. Fiscal laws such as the Companies Act, Securities Exchange Board of India Act 1992 , Depositors Act 1996 and Income Tax Act 1961 provide for Commissioners and Chief commissioners, Central Board of Direct Taxes (appellate authority) as well as various Tribunals which are all appointed authorities.
The Special Economic Zones Act (SEZ) 2000 envisages several layers of appointed authorities. The decisions by Minister/CM are taken on recommendations of these authorities and not by differing with them. Thus, the myth about political interference in day-to-day administration by the Minister/Chief Minister, MLA, MP etc. needs to be accepted with a pinch of salt.
We therefore need appointed institutions with backbone and with a spirit of public service to check injustices and in giving good governance.
The IAS, IPS etc., which were touted as the steel frame of administration and as leaders of the bureaucracy and police, need to share the blame. The phrase “Council of Ministers” in Article 74 (1) is the cornerstone of parliamentary democracy. Advice of the Council of Ministers may not translate absolutely in actual governance. It must be reconciled with the word “officers” in Art 53 (1) in the overall context of the constitutional and legal scheme.
This narrative is by no means a certificate of politicians as an asset of the nation. But the political class is accountable a) to the law of the land, and b) to political accountability in periodic elections.
A combination factors such as media exposure of crime and wrongdoing, civil society activism and public movements, efforts of political opposition, genuine public interest litigations activists etc. will make the political class accountable to law. The appointed institutions particularly the judiciary go without any degree of accountability.
A conference of Chief Ministers held in 1997 to weed out the dead wood amongst All India Service Officers drew a blank as each official was certified as good or outstanding year after year because annual assessment reports are written and reviewed by the official hierarchy.
Thus, the power behind the throne in the republic are the appointed institutions. If this power is exercised in “public interest”, there can be realization of justice.
The writer is a retired Inspector-General of Police.