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The Union Executive

Dear Readers, this is an updated article which was here with the same title. The new article has some updated versions of arguments. Even if you have read it before, please read it again since it is now, new and improved.

Among the three classical organs of government, the executive is designed to be in the driving seat. In terms of size, it is midway between the legislature and the judiciary. Legislation, execution, and adjudication are, of course, all vital to governance, each contributing to the legitimacy of the state and the regime. The executive in India, comprising the President/Vice President/Prime Minister/ Cabinet, and the Civil Services, with their counterparts in the states, have had a mixed performance marked in the various phases since the commencement of the Constitution in 1950 by tendencies and trends of institutionalisation, decline and regeneration. We elaborate and examine this argument in what follows in this paper.
The nature of the Executive branch in the parliamentary-federal Constitution of India is largely patterned on the parliamentary cabinet system of government as it has evolved in the United Kingdom, in a unitary parliamentary setting, and in the classical Commonwealth constitutions in Canada and Australia which combine parlimentarism with federal principle of government. In the UK the cabinet first emerged during the seventeenth century by convention during the regime of Charles II as a meeting of those advisers whom the monarch chose to consult. By the nineteenth century the Monarch ceased to attend cabinet meetings, which came to be chaired by one of the ministers, presumably the ablest or most popular, who came to be called the Prime Minister. And for its survival, the cabinet came to increasingly and finally solely depend on the support of the House of Commons rather than the Monarch. All this evolved through precedents and conventions and is not codified in any law or constitution. The situation remains substantially the same in older colonial dominion constitutions of Canada (1867) and Australia (1901) that still largely serve as national constitutions in those countries. The federal and regional executives in Canada and Australia are still governed by convention rather than any explicit provisions in their constitutions.
The President and the PM
The constitution of India departed from the foregoing practices in several ways. First, it adopted republicanism in having an elected—indirectly elected—President as the head of the federal state, and an appointed Governor by the Union Executive as the head of the regional state. This meant a departure from the Canadian and Australian practice of having the Crown of the United Kingdom appoint, on the advice of the Prime Minister and Cabinet of Canada and Australia respectively, the Governor General of the countries concerned. The Heads of the regional states/provinces there are, in turn, appointed by the Governor Generals of Canada and Australia on the advice of the respective federal governments. This practice has been adopted in India, with republican adaptation in that the Governors of the states are appointed by the President. In all the three countries, the formal power of the head of the federal state is actually exercised on the advice of the Prime Ministers and their cabinets, who are the real executive heads of the governments concerned.
Second, India differs from Canada and Australia in that the office of the Prime Minister and his Council of Ministers here are governed by written provisions of the Constitution, though the so-called cabinet and its committees depend on conventions and rules of the business framed by the government of the day. The office of the President, in whom ‘the executive power of the Union shall be vested’ and ‘shall be exercised by him either directly or through officers subordinate to him in accordance with this Constitution’, in terms of the explicit provisions of the Constitution (Article 53). Article 74 provides for ‘a Council of Ministers with the Prime Minister at the head to aid and advise the President.’1  Article 75 enjoins ‘the Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister’ (Clause 1). The same article proceeds to make seemingly contradictory provisions: ‘The Ministers shall hold office during the pleasure of the President’ (Clause 2); and ‘the Council of Ministers shall be collectively responsible to the House of the People’ (Clause 3). The contradiction is, however, only apparent rather than real. For any independent action on the part of the President vis-à-vis an individual minister or the Council of Ministers headed by the Prime Minister would be countervailed by the House of the People or the Lok Sabha, to which the council must be collectively responsible.
In addition to the President, Vice-President, Prime Minister and his/her Council of Ministers, in the Union government; and the Governor and Chief Minister and his/her Council of Ministers at the state level, the administration or Services are also a part of the Executive. In our appraisal of the working of the Executive in India, we focus mainly on key structural and relational aspects of executive governance. We begin with the assumption that the constitutional design of both these formal dimensions are, by and large, sound, being a product of the limited experience in representative and responsible government in British India and the discursive deliberations on the parliamentary federal constitutions around the world in the Constituent Assembly of India. The deviations and distortions are to be mainly found in our working the constitutional and legal provisions vis-à-vis the Executive.
The relationship, between the ‘formal’ and ‘real’ parts of the Executive in India has been a controversial issue at both the Union and state levels.2 This aspect has been particularly vulnerable to divergent interpretations and manipulation as the original Constitution has largely left it in silence and arguably to be governed by constitutional conventions prevalent in the United Kingdom and the Commonwealth parliamentary federations in Canada and Australia at least in case of the President, if not the Governors. Like the monarchical heads of the state there, the Indian President is normally supposed to act on the advice of the Council of Ministers with the Prime Minister at its head. The President has the power to return the proposal for reconsideration by the cabinet at most once. In case it is reiterated, it is binding on the President (44th constitutional amendment, 1978). There have been at least some instances when the cabinet decided not to do so, and thus letting the President have the last word.
Like the President, the Governor is normally expected to function on the aid and advice of the Chief Minister and his Council of Ministers, barring where there is no such Council in place to offer advice (e.g. where there is no clear majority party or parties in the Assembly after an election). Moreover, unlike the President whom the Constitution does not expressly allow any discretionary power, the Governor is allowed some exceptional discretionary powers by the Constitution itself (Article 163, mentions possible exceptions under the Constitution where the Governor is ‘required to exercise his functions or any of them in his discretion’. Article 356, Clause 1, deals with emergency in a state; the 5th Schedule contains provisions for administration and control of scheduled areas and scheduled tribes in states; and the 6th Schedule makes provisions for administration of tribal areas in the states of Assam, Meghalaya, Tripura, and Mizoram).
Rajendra Prasad, the first President of India for two consecutive terms (1950- 1860), offered a broader discretionary interpretation of President’s power. On 18 September 1951, in a note to Nehru he said he intended to act in his discretion in sending messages to the Parliament and in assenting to bills or while returning bills to Parliament for reconsideration. This was probably prompted by his response to the Nehru government’s intention to reform the Hindu personal law, which Prasad being a conservative Hindu did not countenance. He also opposed the Hindu Code Bill that had just been introduced in the Provisional Parliament on the ground that a legislation of such major consequences for the civil society must await until a regular Parliament was elected under the Constitution on universal adult franchise and people’s mandate for it was obtained. Prasad also invoked the federal principle arising from Article 254 of the Constitution relating to some inconsistency between a law made by Parliament and a law made by a state legislature. The personal laws of religions communities fall within the concurrent list of the Seventh Schedule of the Constitution on which both Union and state Legislatures are competent to make laws with the Union law prevailing in case of any conflict. However, such a state law would prevail in a particular state if it has been reserved by the Governor for the consideration of the President and has received his assent. Prasad was thus inclined to question the assumption in the Constituent Assembly that by convention the President would act on the advice of the Council of Ministers in all these matters relevant in this context (Austin 1999: 139-141).
Nehru disagreed and got endorsement of his view from Alladi Krishnaswamy Ayyar, formerly an important member of the Constituent Assembly, and the Attorney General M.C. Setalvad. In addition to citing British constitutional experts like Anson and Dicey, the reference was also made to the Constituent Assembly debates in which Ayyar had contended that as ‘the people’ are sovereign who elect the Parliament from which springs the Council of Ministers the final say rests with the Council and not with the President (Austin 1999: 141)3 . Prasad did not act upon his interpretation of the President’s power (Austin 1999: 142). A major constitutional crisis that could have subverted the original design of the executive was thus averted.
Years later, Prasad raised the issue of President’s power vis-à-vis the Prime Minister and Council of Ministers again in a speech delivered on 28 November 1960 to the Indian Law Institute in New Delhi while laying the foundation stone of its building. He said ‘I may take the liberty of putting forward a suggestion for study and investigation by the institute’. He went on to say that even though our ‘Constitution is very largely founded on the British Constitution, ‘there are certain differences which are obvious’. He continued: ‘The British Constitution is a unitary constitution in which the Parliament is supreme; having no other authority sharing its power of legislation except such as may be delegated. Our Constitution is a federal constitution in which the powers and functions of the Union Parliament and the state Legislatures are clearly defined and the one has no power or right to encroach upon the rights and powers reserved to the other. The Head of the State in the British Constitution is a Monarch and the Crown descends according to the rules of heredity. In India the Head of the State is an elected President who holds office for a term and can be removed for misconduct in accordance with the procedure laid down in the Constitution.’ He also mentioned the absence of any ‘provision in the Constitution which, in so many words, lays down that the President shall be bound to act in accordance with the advice of his Council of Ministers. In the light of these provisions of the Constitution he posed the question ‘how far these and other provisions go towards making the functions and powers of the President identical with those of the Monarch of Great Britain’ (Text of the speech in M.P. Singh and Ravi Bhatia 2008: Part IIb: 19-20; see also Austin 1999: 142-143). This speech was delivered towards the fag end of his second term as the President of India and it remained a matter of academic debate, and he said so to be his intention.
Radhakrishnan, Prasad’s successor as the President, strictly subscribed to a constitutional or nominal view of the role of his office. Eeven though he was frank and fortnight in his comments on the policies and performance of the Nehru government, he believed that ‘the President should never directly exercise executive authority’ (Gopal 1989: 394). He always showed his formal addresses to his Prime Ministers, except on one occasion when Lal Bahadur Shastri (Nehru’s successor) was not easily at hand, and the latter later murmured about it (Gopal 1989: ch.12).
Prasad’s interpretation of President’s power as well as his use of the term ‘his’ (President’s) in relation to the Council of Ministers in his Indian Law Institute’s lecture mentioned above may have been out of grain with the model of the Commonwealth parliamentary-federal constitutionalism that the Indian Constituent Assembly generally adopted, as it verges on the model of executive presidentialism in the USA or semi-presidentialism in France. But the wages of a literal nominal interpretation of the President’s role in India became all too evident in 1975, when, confronted with the JP Movement, Prime Minister Indira Gandhi resorted to the authoritarian Emergency proclamation under Article 352 of the Constitution without consulting her cabinet, ‘which a pliant President, Fakhruddin Ali Ahmad, signed as soon as it was put in front of him’ (Guha 2007), reprinted 2011: 401). It was a gross abuse of emergency power and subversion of democracy in the country (Justice Shah Commission Report 2010).
The conventional parliamentary interpretation of the President’s role binding him/her to the advice of the Council of Ministers was fortified by a similar judicial interpretation by the Supreme Court in Shamsher Singh v. State of Punjab (1974). But the Emergency regime of Prime Minister Indira Gandhi proceeded to doubly fortify it by the forty-second constitutional amendment (1976). The post- Emergency Janata Party government reviewed it and added a new provision. Article 74, clause 1: 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 (44th constitutional amendment, 1978).
But what about where the Constitution does not expressly require the President to act on the advice of the Council of Ministers? Article 75(1) of the Constitution reads: ‘The Prime Minister shall be appointed by the President and the other Ministers shall be appointed by the President on the advice of the Prime Minister.’ It does not say anything about whom shall the President appoint nor is there any mention of the Council of Ministers here. There is obviously no Council of Ministers unless a newly appointed Prime Minister forms one. But the Constitution is also doubly silent on who is to be appointed to that office, and of which house of the Parliament one must be a member at that point of time. President’s choice in the matter would be guided by some additional and tangential provisions of Article 75 of the Constitution. Clause 5 of this Article stipulates that a Minister (and presumably the PM) who is not a member of either house of Parliament must become one within six months of one’s appointment. So far all Prime Ministers have come from either of the two houses of Parliament. The Supreme Court of India has held in S.P. Anand v. H.D. Deve Gowda (1996) (6 SCC 734) that the British convention that the Prime Minister should be a member of either house, preferably the House of Commons, is not a part of Indian constitutional convention. The only requirement is that the Council of Ministers should be able to hold the confidence of the Lok Sabha. But how should the President be guided where there is no clear majority for any party or coalition of parties? This situation may arise after an election or at any point of time later if a government is reduced to a minority. There is no established convention in this regard in India. In 1979 the Janata Party got split and the Morarji Desai government lost its majority in the Lok Sabha. Desai resigned and President Neelam Sanjeeva Reddy exercised his discretion in face of the contending claims by Jagjivan Ram, the leader of the rump Janata Party, and Charan Singh, a dissident Janata Party leader, who was egged on by the Congress Party, the second largest party in the house, to stake the claim to form a government. President Reddy exercised his discretion to give a nod to Charan Singh and asked him to seek a vote of confidence within a month.
After the assassination of Congress Prime Minister Indira Gandhi in October 1984, President Zail Singh promptly appointed Rajiv Gandhi as the Prime Minister in his discretion even without waiting for his election as the leader of the Congress Parliamentary Party. Earlier, in the event of the death in harness of two Prime Ministers—Nehru’s in 1964 and Shastri’s in 1966—President Radhakrishnan had immediately sworn in the senior most Cabinet colleagues of the deceased Prime Ministers pending the election of the regular leader of the Congress Parliamentary Party. The interim incumbent on both the occasions was Gulzarilal Nanda, while the party’s final choices were Lal Bahadur Shastri and Indira Gandhi respectively (Gopal 1989: 331). This better precedent was unsettled by Zail Singh for personal and dynastic considerations, however he may belabour to rationalise it, unpersuasively to my mind (Singh 1997: 203-04).
Another good precedent was one set by President V.V. Giri in November 1969 when the Congress government headed by Indira Gandhi lost its majority due to the split of the party into Congress (Ruling) and Congress (Organisation) led by S. Nijalingappa. Unlike later Presidents faced with a similar condition, Giri did not ask Indira Gandhi to prove her party’s majority in the Lok Sabha, and left it for the Opposition to move a vote of no-confidence. As it happened, in the winter session of the Parliament due in a few days the Swatantra Party and the Bharatiya Jana Singh moved an adjournment motion on India’s humiliation at the Rabat Conference of Muslim countries. The Congress (Organisation) supported it, but the government survived with the support of the Communist Party of India (Marxist), Socialist Party, Dravida Munnetra Kazhagam, and nonparty Independents (Noorani 2009).
Since the 1989 Lok Sabha elections to the 2014 general elections, no single party was able to get a majority. The Presidents was repeatedly called upon to play a discretionary role in the formation of federal coalition governments. For two and a half decades since then, the Presidents had had a difficult time dealing with appointing a Prime Minister in hung parliaments due to fragmented electoral mandates compounded by fluid inter-party combinations and unscrupulous defections of legislators from one party or coalition to another and the resultant governmental instability particularly rampant for nearly a decade of federal coalitional governance since 1989. Manor (1994: 136) opined that in this changed political scenario, President’s ‘actions…may prefigure future conflicts between Prime Minister and the Presidents, if India has now entered a period in which hung Parliaments become the norm.’ Nothing of the sort really happened mercifully in the nearly two decades since Manor expressed this concern. After the tri-polar coalitional configuration among the Janata Dal-led National Front/ United Front, Bharatiya Janata Party (BJP)-led National Democratic Alliance (NDA), and the Congress-led grouping during the first decade, there developed subsequently a bi-nodal coalitional configuration between the NDA and the Congress-led United Progress Alliance (UPA) by the beginning of the first decade of the new century. This new phase witnessed some measure of governmental stability yet governance is still vitiated by a high incidence of corruption and criminalization of politics.
Instead of going into the complex narrative of the difficult task of the Presidents during the era of coalition governments in appointing a Prime Minister, we prefer instead to summarily deduce the modalities and rules the Presidents have so far sought to evolve, presumably contingently, and deal with admittedly complex and difficult political situations compounded by unscrupulous conduct by the political actors involved. After narrating the President’s actions in some detail the constitutional expert A.G. Noorani (2009) sums it up in four following points. First, to deal with a hung Parliament with no clear majority for a party or a coalition, no clear-cut rule is discernible requiring the largest single party to be necessarily invited to form a government in all cases. It is generally followed but not as a matter of course. Nor is a distinction made invariably between a pre-poll and a post-poll alliance among the parties. Second, the Presidents have preferred written assurances of support for a coalition by parties/MPs and probability of stability inspired by a common minimum programme agreed among coalition partners, either before or after the election. Third, Presidents have generally stipulated a time line to prove majority support but only when there is an acute crisis of confidence that mandates transparency by all, the President included. Fourth, as a matter of last resort, a minority government is not ruled out, subject to subsequent proof by a confidence vote in the Lok Sabha. These rules, by and large, also apply to the role of Governors in state Legislatures in similar situations. Noorani (2009) also surmises that the President’s or Governor’s decision is open to judicial review.
Prime Minister and Cabinet
It was during the period of Nehru-Patel duumvirate4 from the interim government to Patel’s death in December 1950 and Nehru’s predominance in the Congress party and the Government of India subsequently that the basic contours and the operative norms of the cabinet system in India were sought to be founded. The relationship between the Prime Minister and the cabinet came to be discussed very early in the day in an exchange of notes between the first Prime Minister Nehru and Deputy Prime Minister and Home Minister Sardar Ballabhbhai Patel through Mahatma Gandhi in the context of some grave misunderstanding between the two stalwarts. Nehru’s note, among other things, argued: ‘As I conceive it, the Prime Minister’s role is, and should be, an important role. He is not only figurehead but a person who should be more responsible than anyone else for the general trend of policy and for the coordination of the work of various Government departments. The final authority necessarily is the Cabinet itself. But in the type of democratic set-up we have adopted, the Prime Minister is supposed to play an outstanding role…. Otherwise there will be no cohesion in the Cabinet and the Government and the disruptive tendencies will be at work…. If this view is correct, then the PM should have full freedom to act when and how he chooses, though of course such an action must not be an undue interference with local authorities who are immediately responsible’ (Durga Das, ed., 1973: 18-9).
Patel’s rejoinder, in parts, read: ‘The Prime Minister’s position according to my conception is certainly pre-eminent: he is first among equals. But he has no overriding powers over his colleagues; if he had any, a Cabinet and Cabinet responsibility would be superfluous. In my view the Prime Minister, as the leader of the party and the head of the whole administration is inevitably concerned that Cabinet decisions are effective and that there is no conflict between one Ministry and another. But the entire responsibility for implementing the policy of Government rests upon the Ministers and Ministries under them which are concerned with the subject matter of the Cabinet decisions. He had accordingly the right to ask for information from Ministers concerned as well as the right to consult and advise on the lines of policy to be adopted and even the manner in which the policy is to be implemented. But the responsibility for implementation of the policy must be that of the Ministry concerned and the Minister in change, and the Prime Minister should influence action by way of consultation with and advice to the Minister’ (Durga Das, ed., 1973: 24).
The proposed meeting between Nehru and Patel on this issue with Gandhi was pre-empted by the assassination of the Mahatma. Stunned by this turn of events, the Nehru-Patel duumvirate continued for two more years and laid the foundations of the Indian Cabinet system. It sustained reasonably well, with inevitable modifications in the altered power equations within the government and the party following Patel’s death in December 1950, until Nehru expired in harness in May 1964.
The end of the Nehru era began with Lal Bahadur Shastri’s succession in 1964, and following his sudden death in January 1966, Indira Gandhi’s as Prime Minister. Both these potentially unsettling events were managed democratically. The former was conducted successfully without an open contest by the intermediating role of an informal grand federal council led by Congress President K. Kamaraj and some key Union Ministers and Chief Ministers, all within the still prevalent dominant Congress party umbrella (Michael Brecher, 1966). In the latter case, Congress hierarchs failed to produce a consensus despite the formal declaration of support by them for Indira Gandhi. Morarji Runchhodji Desai could not be persuaded to back out this time. In a secret ballot the Congress Parliamentary Party voted Indira Gandhi as its leader and therefore the PrimeMinister. Yet a split in the party was averted by making Desai the Deputy Prime Minister with the finance portfolio. Desai was designated the first Deputy Prime Minister after Ballabhbhai Patel in the first Nehru cabinet (Granville Austin 1999: 174-5).
However, the tension between the old guard, nicknamed Syndicate, could not be contained for long. Desai was never the part of the Syndicate led by Kamaraj; indeed the Syndicate had preferred the supposedly amenable Indira to the self-righteous Desai. It turned out to be a miscalculation, as tension within the party exacerbated, especially after the 1967 general elections, which the party won but with reduced majority in the Parliament; it moreover lost in as many as half of the then 18 states of the Indian Union. The party eventually split in 1969 between the Congress (Ruling) led by the Prime Minister and the Congress (Organisation) controlled by the Syndicate then belatedly aligned with Desai. The Prime Minister, flaunting her commitment to socialism and adopting a series of  populist measures, opted for a snap election in early 1971 dubbing the Congress (Organisation) as rightwing reactionaries ranged against the progressive Congress (Ruling) and won hands down. In the process, the pre-split institutionalized Congress party lost its formal democratic character and got transformed into a personalised party subsequently formally named Congress (Indira) and devoid of intra party-democracy (M.P. Singh 1981).
To come back to the theme under discussion in this paper, the Union Executive suffered a serious damage from the perspectives of democracy and constitutionalism. The net effect, as succinctly put by Granville Austin (1999: 174), was: ‘The executive branch came to dominate Parliament to such a degree that Parliament lost any effective identity of its own. And, authority within the executive became concentrated in the Prime Minister’s office and then was exercised from Mrs. Gandhi’s residence, to the exclusion of all but a few. The two branches, if still they could be called that, affected the third branch, the judiciary, intending to end its function as a co-equal branch of government.’
This excessive centralization of power did not stop at the vitiation of separation of powers among the three classical organs of the government at the centre. It also undermined the federal division of powers between the Union and states. Even the Chief Ministers of the states came to be handpicked by the Prime Minister and the coterie around her.
The over-centralisation of powers in the prime ministerial executive produced two negative effects, one immediate and another in slower motion. The immediate impact was seen in the form of the Gujarat and Bihar Movements on a mass scale involving protests against authoritarianism and corruption in Congress governments in New Delhi and states that spread throughout North India under the leadership of Jayaprakash Narayan. Prime Minister Gandhi finally reacted by the imposition of internal emergency in June 1975, a questionable recourse to Article 352 of the Constitution, entailing arrest of the movement and opposition party leaders as well as Congress dissidents, press censorship, a series of authoritarian amendments to the Constitution, and confrontation with the judiciary. Slowly but steadily, these moves led to the emergence of the Assam movement by the late 1970s and insurgencies in Punjab in the 1980s, and in Jammu & Kashmir by the end of the 1980s.
Political deinstitutionalisation and recourse to naked executive governance came to be reversed by the 1977 general elections that routed the Congress party for the first time at the Union level and in practically in all north Indian states. A hurried amalgamation of five non-Congress and non-communist opposition parties into the Janata Party was made which was voted to power. The new government removed the authoritarian grafting into the Constitution and put democracy back on the rails. However, the regeneration of institutions suffered some setback due to the premature fall of the Janata Party government in mid 1979 due to factional squabbles along the pre-merger party constituents and the top three leaders, Moraji Desai (Congress-Organisation), Charan Singh (Bharatiya Lok Dal), and Jagjivan Ram (Congress for Democracy).
In the elections that followed in 1980 the Congress was electorally restored under a chastened Indira Gandhi. This decade of Congress in power after its rehabilitation in New Delhi and most states it had lost in north Indian states was divided approximately in time line by half between Indira Gandhi and, following her assassination by her two Sikh security guards, her elder son Rajiv Gandhi as Prime Ministers. The topical themes in the governmental discourse during the decade were expansion of executive powers through extraordinary laws and recurrent confrontation with the judiciary which did not suffer as grievously this time as during the internal emergency (1975-77). The office of the President of India also recovered from its politicisation under V.V. Giri and its ignominy under Fakhruddin Ali Ahmad as also under Zail Singh. Zail Singh belatedly showed some spine in inventing a ‘pocket veto’ against the illiberal postal interception bill (1987), a power not expressly provided for in the Indian Constitution. He also showed some cautious courage in dealing with Bofors scandal concerning Prime Minister Rajiv Gandhi. With R. Venkataraman succeeding Zail Singh in the Rashtrapati Bhawan, the dignity of the Presidency was restored. It remains intact since then, barring the lacklustre performance of Pratibha Patil.
Political Executive in Era of Minority/ Coalition Governments
Discounting the Congress minority government of P.V. Narasimha Rao (which half-way through its mandate managed to fabricate a majority and lasted for full term (1991-96) and all too brief minority governments of Charan Singh, Chandrashekhar, and Atal Bihari Vajpayee, India Since 1989 to 2014, witnessed six minority governing coalitions bobbed up by some parties from the parliamentary floor to enable them to reach the majority mark without joining the government. These are the Janata Dal-led National Front government and two governments of the Janata Dal-led United Front (1989-90 and 1996-98); the Bharatiya Janata Party-led National Democratic Alliance government (1999- 2004); and the two governments of the Indian National Congress (I)-led United Progressive Alliance (2004-2009 and 2009-2014). Coalition governments apparently seemed interminable, but the 2014 parliamentary elections have proved to be a watershed in giving the BJP a single party a Lok Sabha majority after a gap of three decades since 1984. Following an agonisingly long ‘presidential’ style(in the US sense) campaign and balloting schedule in India’s parliamentary setting led vigorously by Narendra Modi, the BJP prime ministerial nominee announced well ahead the polls, the party got 282 seats in 243-member Lok Sabha, even though it contested as the leading party of the NDA and formed a coalition government with a coalitional strength of 336 MPs. It is still too early to speculate on the new trends to be set by the Modi government, but the early tendencies portend a prime ministerial cabinet system. But it is again difficult to say whether it would be in the tradition of Nehru or Indira Gandhi. Modi’s critics are bent upon the latter prognosis, but they appear to have a closed mind to the vastly variable three contextual settings involved in these comparisons.
The functioning of the executive during the phase of the coalition governments just behind us has changed beyond recognition in comparison to single-party governments of the period of Congress dominance. Coalition governments have brought in their train considerable constraints on the power of the Prime Minister, at least in practice if not in constitutional law. On the other hand, the political manoeuvrability of the President has considerably increased, though the incumbent continues, in ultimate analysis, to be a nominal Head of the State. Prime Minister’s choice of cabinet colleagues and power of initiation and coordination of policies, especially in ministries allocated to the coalescing parties have become much more restrained in coalition cabinets than in party governments. Party governments are also subject to factional politics involving powerful cabinet colleagues, which is well illustrated by the Nehru-Patel duumvirate discussed above. But even a Prime Minister of a coalition government does have some means to corner a powerful minister. Prime Minister I.K. Gujral of the Janata Dal-led United Front narrates in his memoirs a cabinet reshuffle he carried out in June 1997: ‘The most difficult change pertained to the Ministry of Civil Aviation. The Minister in charge, C.M. Ibrahim (a close associate of Deve Gowda) had acquired notoriety for his alleged high-handedness. However, I thought it would be prudent on my part not to take him on frontally at that stage because Deve Gowda (who supported Ibrahim) had requested me “not to disturb” him for the time being. So I did the next best thing: I appointed Jayanthi Natarajan [Tamil Maamila Congress] as the minister of state in the same ministry. I decided to follow Indira Gandhi’s example by asking the secretary in the Ministry of Civil Aviation to deal more with Jayanthi Natarajan than with Ibrahim’ (Gujral 2011: 419).
The President in the era of federal coalition governments has perceptively become more consequential than in the past. In October 1997 President K.R. Narayanan took an unprecedented decision to return the Gujral cabinet’s recommendation to dismiss Kalyan Singh government (BJP) in UP citing the Sarkaria Commission Report (1988) and the Bommai judgement of the Supreme Court (1994), making a turning point in the much abused power of the Union government dismissing state governments of parties opposed to the party in power at the Union level in over 90 instances in the past since the commencement of the Constitution in 1950. President’s decision to return the proposal was accepted by the cabinet, which opted not to reiterate it, which would have made it mandatory for him to sign on the dotted line (Ramakrishnan and Swami 1977)5. In October 1998, President Narayanan repeated history by returning the National Democratic Alliance Prime Minister Atal Bihari Vajpayee (BJP) government’s advice for dismissing the Rashtriya Janata Dal government headed by Rabri Devi in Bihar. This was because the President saw no evidence of a constitutional breakdown in Bihar. Vajpayee having gone to New York, neither clarified nor took the initiative to reiterate the advice. Narayanan, however, could not resist a second attempt of the NDA government to dismiss the Bihar government in February 1999 in the context of a new incident of caste conflict/ atrocities against Dalits in a village. But this proclamation of President’s rule in Bihar was not ratified by the Rajya Sabha, and Rabri Devi stayed in office (Farzand Ahmed and Harinder Baweja 1998; A.G. Noarani 2013)6.
In a comparative longitudinal analysis of parliamentary systems in South Asia, Noorani (2013) sums up a few basic points about the President of India that, to my mind too, appear well settled, First, ‘within limits, Presidents can comment on affairs of the state in public. Criticism of the government must be muted, though it should be more in the nature of sounding an alarm. In rare cases, public expression of disquiet, even censure, is proper’. Second, ‘the President’s right to know, embodied in Article 78, is not challenged’, though Prime Minister Rajiv Gandhi cavalierly treated President Zail Singh in this regard with unpleasant consequences for both. Third, ‘the practice is now established of the President receiving leaders of opposition parties singly or in a delegation to lodge a protest against the government’s action. He offers no comment but forwards the protest to the PM and speaks to him if he so decides.’ Fourth, ‘it is established that the President is not bound to accept the Prime Minister’s request for dissolution of the Lok Sabha but is entitled to exercise his judgement and consider the alternatives before accepting it’. Fifth, ‘not only the opposition parties but Chief Ministers of States also invoke the President’s moral authority as “guardian of the Constitution” in their case specially to safeguard its federal character.’ Sixth, ‘it is well settled that assent cannot be withheld, only reconsideration can be sought. If re-enacted assent must follow:’ This applies to bills as well as to proposals to dismiss a state government. Seventh, ‘the question whether the President can assert a right under Article 86 to address Parliament or to send a message to either of its Houses in his own discretion, is open. In 1950 the Attorney General opined against it in the face of the President’s challenge on a host of issues. His opinion on the point gave no reasons. At the least, the matter is open. It is unthinkable that in an extreme case a President would flinch from taking his case to Parliament’. Eighth, ‘the President is entitled to insist, when appointing a PM that he obtains a vote of confidence from Parliament within a stipulated short period’. Ninth, ‘the existence of the President’s power of dismissal has not been seriously challenged. There is near unanimity on fears of its abuse. No responsible politician has sought such an intervention by the President against his opponents. In 1987, some carpetbaggers did. In June, Zail Singh was tempted, but wiser counsel prevailed. He would have come to grief’(emphasis on the word existence in the source itself ).
Administrative Arm of the Executive
Besides the elected political part, the executive also has an appointed bureaucratic part. The executive in the Union, state, and local governments are assisted by central, state, and local services, specifically recruited and trained by Union and state governments and partly also by local bodies. Officers holding higher positions and recruited by Union and State Public Service Commissions provided for in the Constitution of India itself rather than in a law, which is usually the pattern in the liberal democratic West. India is unique in having a special cadre of officers called All India Services (AISs). Indian Administrative Service (IAS), Indian Police Service (IPS), and Indian Forest Service (IFS), who serve on the highest posts in all the three levels of governments. The historical antecedents of the AISs go back directly to the Indian Civil Service (ICS) of the British Raj and dimly and indirectly to the Mughal mansabdari system and the Mauryan mahamatya system instituted by Akbar and Ashoka, respectively (M.P. Singh 2013: 136-7). The Constituent Assembly decided to institute them with a certain degree of continuity and reforms on the basis of a consensus decision at a provincial premiers’ conference in July 1946, convened and chaired by the Deputy Prime Minister and Home Minister Ballabhbhai Patel. Patel persuaded Prime Minister Nehru and the Constituent Assembly not to leave the AISs to the legislative determination of the two orders of governments (B. Shiva Rao & Others, Eds. 1968: chap. 23). As it turned out, they are regulated by the Constitution itself and supplementary legislations. The constitutional and legal norms expect the civil servants to be politically neutral and committed to the constitutionally and legally valid public policies. The practice has become much politicised in partisan sense since the Indira Gandhi years at the centre as well as in the states, notwithstanding some courageous civil servants to this day who stick out their necks in the best tradition of political neutrality of civil services as conceived in the Constitution and the constitutional and judicial discourses.
A common complaint against the public services has from the early days of India’s Independence been that they suffer from colonial and elitist hangovers. Their commitment to democracy and development has often been suspect. They are admonished to identify with India rather than the West, Bharat rather than India, common man in the street rather than the elite and the affluent. There is a long living link between Gandhi’s Hind Swaraj (10909) through Jayaprakash Narayan’s Swaraj for the People (1961) to Arvind Kejriwal’s Swaraj (2012) occasionally turning ripples into waves of public protests in India. During the first major post-independence mass political protest against authoritarianism and corruption during the 1970s, its top leader Jayaprakash Narayan (JP) said that politics is the Gangotri of corruption but he did not spare the administration from his frontal critique. Prime Minister Indira Gandhi, who overreacted by suspending democracy by the misuse of the Article 352 of the Constitution dealing with national emergency to contain the JP movement, gave the infamous call for a ‘committed’ bureaucracy and judiciary (reminiscent of facist/Nazi focus on the leader). The latter at least party resisted, but the administration practically caved in, with a few exceptions of clandestine courage in the peripheries. That was the first comprehensive collapse and rot in the administrative arm of the executive. The decay has not yet been reversed.
The revival and regeneration of the administration in the post-emergency India for about a decade or so appears to be neither comprehensive nor sustainable. Slowly but surely during the 1990s, and certainly by the 2000s, the air is again thick with political and bureaucratic degeneration and rot. Indirectly, the most telling evidence comes from a high-level Union government administrative committee chaired by the then Home Secretary N.N. Vohra. In its report submitted to the Government of India in 1993, the committee drew pointed attention to a nexus among politicians, criminals, police, and bureaucrats in various parts of the country (Vohra Committee Report, 1993). More recently, legal action triggered by the reports of the Comptroller and Auditor General of India to the Parliament and Supreme Court’s orders against ministers and civil servants in the Congress-led UPA government in relation to 2-G telecom and coal block allocations to corporate private companies, among other endemic cases of corruption that surfaced in 2010 (and the unending exposes continued since the electoral turnaround of 2014) have revealed glaring cases of collusive corrupt deals involving political-bureaucratic-corporate business houses. Corruption cases from states are also legion over the recent decades. Wholesale transfers of civil and police officers on political, caste, and other community considerations after the coming to power of new governments in several states have become nauseating routine affairs.
In this bleak scenario there have been some silver linings over the darkening decades by some inspiring individuals in All India Services like, for example, an Arun Bhatia in Bombay, an Alfons in Delhi, a Kiran Bedi in Delhi, an Ashok Khemka in Haryana, a Durgashakti Nagpal in UP, but a comprehensive institutional regeneration is lacking. There have been notable constitutional commissions appointed by Prime Ministers Lal Bahadur Shastri in 1966, Indira Gandhi in 1983, Atal Bihari Vajpayee in 2000, and Manmohan Singh in 2005 with remarkable recommendations for constitutional and administrative and federal reforms in multiple volumes. But very few and mostly inconsequential reforms recommended by them have really been implemented (M.P. Singh 2013).
To sum up, the executive in India has had a mixed record of decline and regeneration. The high water mark of satisfactory institutional functioning suffered grievous erosion during the Indira Gandhi emergency regime. Democratic restoration during the Janata Party governance created a reformist phase that has neither been complete nor sustainable. The performance of executive governance has also been variable at the Union and state levels as also from state to state. In recent decades National Democratic Alliance-I years under Atal Bihari Vajpayee (1999-2004) and United Progressive Alliance-I years under Manmohan Singh (2004-2009) also appeared marked by stability as well as purposive governance, by and large.
Endemic corruption and criminalisation of politics, coupled with authoritarian trend in some states, triggered the India Against Corruption movement on a fairly wide national scale launched by the Team Anna Hazare in 2011 in the wake of the heady Arab Democratic Spring. The Younger leaders in the Team Annaled by Arvind Kejriwal formed the Aam Aadmi Party the following year that revived the cause of the movement that appeared waning in its momentum. Its vision of an alternative party politics premised on participatory democracy, internal party democracy, and elections and governance free from corruption and criminality unexpectedly cornered both the Indian National Congress and the Bharatiya Janata Party who dared not block its way to form a government in city-state of Delhi following the 2013 Assembly elections, apparently fearful of public reprisal. The BJP, despite being the single largest party short of majority in the newly elected Assembly in 2013, and the erstwhile ruling Congress, reduced to the third position, offered Kejriwal outside support to form his government. Under public pressure, and setting aside his earlier pledge not to join hands with either of the two parties of ‘establishment’, Kejriwal formed the government in Delhi. Its 49-day government showed their honest intentions but less than fully incompetent governance and the inclination to return to politics of confrontation and indecent haste to go national cashing on their Delhi electoral miracle without due diligence to justify the trust of the Delhi voter reposed in them. Straws in the wind seemed to open the way for a national role for the AAP with attendant uncertainties. Its overambitious leadership erred in gambling in a bid for national splash by contesting more than four hundred Lok Sabha seats in the country. It thus spread its human and financial resources too thinly and indiscriminately. It lost all the seven Lok Sabha seats to the BJP even in Delhi, its first stronghold, but remained the runner-up in all these constituencies ahead of the Congress. It won only four seats in the nation, all in Punjab, but significantly equal to the tally of the Shiromani Akali Dal, the major regional party of the state.
Prior to, during, and following the Delhi elections a sudden, almost miraculous, transformation of the political scene came to be marked by a series of institutional innovations facilitated by a National Information Commission (CIC) ruling bringing political parties as public bodies under the Right to Information Act (2005) and a Supreme Court order entailing disqualification of national and state legislators from membership of Parliament and Assemblies if convicted by a court for more than two years. Earlier they were entitled to continue, pending the judgement of the appellate courts. The Congress-led UPA government, egged on by all the major parties, was all set to annual the CIC’s and Supreme Court’s rulings by a presidential ordinance subsequently to be regularised by a legislation. Rahul Gandhi, the heir apparent of the dynastic Congress suddenly but unconvincingly cast himself in the role of a rebel and started making all the right noises. The Congress-led UPA-2 and the main opposition BJP and its NDA allies joined hands in hurriedly enacting the Lokpal Act, first recommended by the Administrative Reforms Commission-I in the early 1970s, the Indian version of the Ombudman to deal with charges of political and administrative corruption. But the operationalisation of the Act right at the outset faced the Opposition charge of diluting the non-partisan character of the Lokpal by nominating members known to be close to the Congress party in the search committee and legal luminaries like the former Solicitor General Fali Nariman and former Supreme Court Judge K. T. Thomas refusing to be associated with the perfunctory role of the toothless search committee. India seems to be on the cusp of a great movement of institutional regeneration. Yet uncertainties and retrogressions have not ceased to haunt us.
1. For the text of the Constitution I have consulted P. M. Bakshi (2013). For texts of constitutional amendments, I have relied on M.V. Pylee (2012).
2. This distinction was first made in the context of Great Britain between the Crown and the Prime Minister and his Cabinet by Water Bagehot (2001, first published 1867).
3. See also Motilal C. Setalvad (1970: 170-2).
4. The term ‘Nehru-Patel duumvirate’ is Michael Brecher’s (1966).
5. Gujral’s memoirs,(2011: pp.435-437) gives and erroneous impression that he was of the same view on the issue as President Narayanan and omits any mention of his cabinet’s proposal to dismiss the state government in UP.
6. Swami and Mahalingam (1998) discusses a signed minute that President Narayanan attached to his letter to Prime Minister Vajpayee giving reasons for his action. First, ‘the condition precedent for the invocation of Article 356, viz., that there has been failure of the constitutional machinery in the state, has not been adequately made out by the Governor.’ Secondly, ‘it would be imprudent to take action in Bihar when preliminary steps such as  warming, directives and eliciting explanation from the state has not been taken by the Union.’ Thirdly, ‘the fact that the government headed by Shrimati Rabri Devi enjoys majority support in the Legislative Assembly has to be borne in mind as per the Sarkaria Commission passage cited in the Bommai judgement of the Supreme Court.’
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