This is a simple explainer of a big problem most of us don’t realise exists, and an appeal for all of us to demand better. So, stick with me.
In primary school civics lessons, when we are introduced to concepts like democracy and to the Indian Constitution, we are taught that there are three pillars of democracy in India. The Legislature, the Executive, and the Judiciary have separate functions and powers. The Legislature — that is the Parliament and state Assemblies — make laws; the Executive — that is, the government ministries, agencies, and bureaucrats — implement laws; and the Judiciary — the Supreme Court, the High Courts, and various lower courts — uphold laws and Constitutional principles.
The idea that these three branches should be separate and independent — the doctrine of separation of powers — has been followed by governments since ancient Greece, to ensure that no single person or group of people can amass too much power. Independently and together, these three branches of government — or pillars of democracy — are crucial for the functioning of a country. And if the three branches are separate and independent, the system can survive even if one branch fails — becomes corrupt, or is filled with incompetent people. One branch, as per the doctrine of separation of powers, cannot interfere with the other two.
In India, we have a problem. There is no outright declaration anywhere that these three branches have separate powers and should remain independent. There are Articles in the Constitution that imply the separation of powers though. For instance, Article 50 says that the state should keep the executive and the judiciary separate; Article 122 says courts cannot look into proceedings of Parliament; Article 121 restricts Parliament from discussing the conduct of a Supreme Court or High Court judge (unless the legislature is looking for impeachment); Article 361 says the President or a Governor cannot be called for a criminal proceeding during their term.
However, practically, the way the three branches of the government function, there is no real independence. For instance, the Chief Justice of India is appointed by the President — that is, the Executive (President) has a hand in Judiciary appointments. The Legislature can impeach a judge, thereby having power in Judiciary functions.
The worst part of this ‘non-separation,’ however, is between the Executive and the Legislature, which has pretty much rendered the Legislature toothless and redundant. And this is a problem for Indian citizens — for you and me — because the Legislative is the one branch that we have a say in. The Legislative is voted in by us, but it has little to no power, and that means our votes have little to zero real value.
As I mentioned before, the job of the Legislature — that is, the Parliament and state Assemblies — is to make laws. This means, drafting Bills, debating them, amending them, etc. The Legislature also holds the Executive accountable — which is why, in Parliament and in Assemblies, we have slots like ‘Question Hour’ and ‘Zero Hour’, where legislators question the work done by the Executive, and we have Parliamentary committees that look deeply at the functioning of different ministries.
But think about who actually makes laws in India. The answer is, the Executive. “The government has made a law,” we usually say and hear, and by government, we explicitly mean the Executive. The Executive — the Prime Minister and his Cabinet, and Chief Ministers and their Cabinets — are the ones who come up with ideas for laws to be passed in the country. They draft the Bills. The Cabinet, or an Empowered Group of Ministers, clears these Bills. A Minister then introduces the Bill in Parliament or Assembly, and if the supporters of the Executive are in the majority, these Executive-ideated, Executive-drafted, Executive-introduced Bills become law without any trouble.
Yes, there is a ‘debate’ in the Legislature — and even that is becoming rare these days. Yes, there is a ‘vote’ — and even that is becoming redundant now with the propensity for voice votes, and with brute majorities in the Houses. But the Legislature only has as much power as any single member of the Legislature does — and that, currently, is zero.
Ideally, an independent Legislative would have members — legislators — coming up with ideas for new laws based on what their constituents want and need. They would then draft the Bill with the help of researchers, and people on the ground, giving inputs. The Bill would then be introduced in Parliament and debated fairly, with other legislators bringing in their points of view, and bringing in amendments that they believe are important for their constituents. The Bill would then become law after the members vote on it, and the Executive would be given the mandate of implementing it. Ideally.
Where we are however is far from it. And the reasons for this futility of the Legislature are many.
The most basic reason is that the Executive, by design, is part of the Legislature. That is — all of our ministers in the government are members of Parliament and state legislatures. So in a sense, if the Executive is accountable to the Legislative, our ministers are pretty much answerable to themselves, especially if their party or coalition has a brute majority. Essentially, the ministers — who are the Executive — can, as part of the Parliament and Assemblies, introduce Bills, and get them passed. Further, the Bills passed by the Legislature have to be signed by the President or Governor (who are both part of the Executive) to become laws.
And as if that wasn’t enough Legislative Power for the Executive, ministers, with the permission of the President of India or Governor of a state, can pass Ordinances when the legislature is not in session. For instance, the recently repealed Farm Laws were first passed as Ordinances, without even a semblance of a Legislative process.
The third problem is ‘subordinate legislation’ — that is, ‘Rules’ that are passed under a law by the Executive. Technically, this provision exists to make it easier for the Executive to implement laws without going through a cumbersome and long process. For example, if a law says fines can be imposed if a person breaks a traffic regulation, the Executive can make ‘Rules’ under the law to decide the amount of fine. However, Rules have been used by the Executive to impose provisions far exceeding what the parent law prescribes, like in the case of the recently passed IT Rules, which prescribe Executive control over the content published on digital media without having gone through any Legislative process.
The fourth problem is the Anti-Defection Law, which binds every single legislator to their party’s diktats, essentially making your and my vote for any member useless. As per the anti-defection law — the Tenth Schedule of the Constitution — any legislator who doesn’t follow their party’s ‘whip’ can be disqualified from being a member of the House. So essentially, it’s only in name that we’re electing individuals to the House, because no legislator can actually take a call on whether they like a Bill or not. They have to stick to the party stand.
The fifth problem is that ‘Private Member Bills’ — or Bills brought in by actual legislators who are not part of the Executive — are pretty much redundant. Technically, any legislator can introduce a Bill in Parliament. But to date, only 14 such Bills have been made into laws in India. The time for discussing Private Members’ Business — which includes Bills and Resolutions — is only the second half of Fridays when the Parliament is in session. And the last time a Private Member’s Bill was made into law was in 1968. The closest the Parliament has come to passing a Private Member’s Bill in recent times was in 2015, when DMK’s Tiruchi Siva’s Bill for protecting the rights of transgender persons was passed in Rajya Sabha. In the Lok Sabha, the Executive asked for the Bill to be withdrawn and promised to bring in their own Bill to this effect — which has been criticised for being a much-diluted version of Tiruchi Siva’s Bill, and for being highly problematic.
So how do we give the Legislative its teeth back? How do we make sure that the people we elect, actually represent our interests?
The first step is to understand why separation of powers is important, and the very next is demanding that our votes are valued. The next time a government passes an Ordinance, speak up against it, whether or not you support the party in power. Because at some point, the party in power may not be one you like, and the only thing you can depend on is solid, independent processes. The next time Rules are brought in to legislate through the backdoor, speak up. The next time the “government” passes a Bill in Parliament without any discussion, speak up.
The next time people come to you for votes, speak up. Ask questions about how they’re actually representing you. And demand answers.
Views expressed are the author's own.
This piece was first published in TNM's award-winning weekly newsletter Here's The Thing. To become a TNM Member, click here.