An unhindered executive?

President Abdul Kalam, addressing the National Conference on Legal Empowerment has raised a very interesting question. This is an event attended by the Chief Justice of India Sabharwal and other Judges of the Supreme Court and among others, the Speaker of Loksabha.

While talking about the executive, Abdul Kalam says as follows:

The third pillar namely, the Executive is also expected to be as independent as possible and free of intrusions from the other two. All along it has been said that Executive is the third pillar of democracy, which is independent of the other two. I however, have a different view. Please do bear with me if I say that the independence that is expected of this pillar is only in theory and mostly eroded in actual practice. How can we expect to have an Executive to function independently when each of its actions is questioned and its functioning is made regularly actionable by and accountable to the independent powers enjoyed by the Legislature and the Judiciary?

In India, the executive turns out to be the Cabinet of Ministers, headed by the Prime Minister. In the Indian model, the executive, by design of the constitution, is not entirely independent. It must get most of its policy decisions passed as law through the legislature.

Why must we bemoan the lack of independence for the executive? The executive arm is the only one which can make policies for governing the country. The legislature can only accept or reject them. In most cases - in 99% of the cases - the legislature acts as a rubber stamp. The office of the president also acts in the same vein. How many private member bills have been passed recently in India? I would venture to say none. With the legislature fast becoming a rubber stamp and the opposition parties very rarely generating a lively debate, the executive has actually become more powerful than the constitution intended it to be.

Take the recent examples of fringe benefit tax and cash withdrawal tax proposed as part of the last budget - poor attempts which were accepted by the legislature after some token protest. Even Congress (I)'s Jairam Ramesh finds them unacceptable, but once the executive has decided on this, it just goes through the legislature. The ordinance on Patents is another. No debate that we have seen.

It is because of this that the common man has no recourse except going to the courts. In the past very few people challenged the decisions of the executive in the courts. Now this has increased. The judiciary has become bolder and unfortunately has started meddling in the affairs of the executive. But with a sensitive, people friendly executive, there will be less and less interference from the judiciary. The judiciary cannot interfere suo motu. It is only because of the aggrieved citizens complaining to the judiciary that the judiciary is forced to interfere and examine the legality of each and every ordinance or act or policy measures with the constitution as a reference point. I place the blame squarely on the executive and the legislature for the current mess.

The executive wing has not framed sensible rules for education, rehabilitation for affected people because of mass developement (dams etc.), mass disaster (Bhopal tragedy), reservation, centre-state relation etc. This is why in these fields there is endless litigation. There is no consensus on law making, there is no national debate before ordinances and acts are pushed through.

It is now upto the legislature and executive to fix their problem, rather than blaming the judiciary for their activistic role.