After having resisted for nearly 3 weeks, I could no longer put off the discussion on the most controversial topics of Indian Constitutional Development. The one-upmanship referred to in the title is the conflict for supremacy between the two arms of the Government - the Parliament and the Judiciary. It would have been almost impossible to refrain from getting into the discussion on how it is not so much a conflict between the Parliament and the Judiciary, as between the Political Executive in collaboration with the majority in Loksabha and the Judiciary, had it not been for the main object of the topic, the ultimate instruments developed by each of these arms. So this post is not about separation of powers, Parliamentary or Judicial Supremacy, comparison between the Presidential or Parliamentary forms, the primacy between Fundamental Rights and Directive Principles of State Policy, although these topics will be touched upon for their incidental, consequential and not substantial values.
The conflict has had a 60-year long history. It started in the Constituent Assembly, when its members debated the extent to which the Judiciary was to be made independent and the Parliament supreme (little did they expect that both the arms would develop their own ingenious and then extra-constitutional means to change this state of affairs).The means referred to here are
1. the IX schedule
2. the Doctrine of Basic Structure
It is quite apparent why the IX Schedule is being referred to as an instrument here. What makes it the Ultimate instrument of the legislature is the preclusion of any law included in the IX schedule from judicial review.
But the instrumentality of Doctrine of Basic Structure is perhaps not as intuitive. If one looks at it, it only appears to be like any other ordinary principle, like the Doctrine of Progressive Interpretation or the Doctrine of Severability. What makes it powerful is its a non-exhaustive nature. The SC after the invention of the doctrine has added many more features to it in its subsequent judgements. As basic structure finds no clear mention in the Constitution, it's definition is completely at the mercy of the SC's discretion. In short, basic structure is, what the SC says it is.
What is fascinating though, is not that both the arms invented their own instruments, but the fact that just like these arms were supposed to complement each other, so do their instruments. The Doctrine of Basic Structure is to the Judiciary exactly what the IX schedule is to the Parliament. Both have monopolies on their respective inventions and their contents, and use them against each other, when crossing into each others' jurisdictions, while preserving their own autonomy. The only saving grace in case of the judiciary is that it has tried to attribute its invention to the Constitution itself, so the arbitrariness was well-concealed in the alleged liberal interpretation of Constitution. The parliament on the other hand was pressed for more urgent matters such as land reforms and socio-economic equality, so it did not offer any other explanation to the arbitrary use of its Constituent powers.
So what is the status of this conflict today? Which instrument prevails over the other? From the most recent judgements of the SC it would seem that Basic Structure has won the battle. The SC judgement in Minerva Mills Vs.Union of India (1980) pronounced Judicial Review to be a basic structure, while its judgement of 2007 on IX schedule has given a clear cut primacy to Basic Structure over the IX schedule. The judgement pronounced by the then Chief Justice of India, Justice Sabharwal, on January 11 (incidentally just a day before he retired as the CJI) said that the inclusion of any law into the IX schedule after the Kesavananda Bharati judgement (24th April, 1973) can be challenged under the Basic Structure Doctrine.
So do these judgments make the judiciary more powerful than the legislature? I beg to differ on this point with many experts. What needs to be balanced is the combination of the legislature and its powers with the judiciary and its powers. So individual arms cannot and should not be compared without taking into account their powers and the procedure of invoking them.
Thus, though it seems that the Doctrine of Basic Structure can over-ride that of the IX schedule, it cannot be invoked unless the laws included in the IX schedule are challenged in the court of law. Supreme Court invented a powerful instrument for itself, but it cannot act on its own accord. It cannot take suo motu actions. It's extra-ordinary powers can be invoked only by the citizens of India, who are sovereign. One can therefor say that it is the sovereignty of People of India that prevails, neither the Basic Structure nor the IX schedule. In conclusion it can be said that the instrumental nature of Basic Structure and IX schedule also reinforces the instrumentality of their creators.
The research for this post helped me sort out my own thoughts on Basic Structure Doctrine and the IX Schedule among many other things to a certain extent. Another discussion on these two concepts about their sui generis nature will hopefully take care of the rest. Until then I conclude this discussion here and hope to be able to move on to a new topic in the next post.
Monday, February 22, 2010
Wednesday, February 3, 2010
Federalism and India
Federalism, I admit, would not have been my first choice for the opening post. Anybody who has studied the Constitution and its 60 years of working would agree that there is no dearth of current or chronic constitutional issues to choose from, be it the conflict between fundamental rights and directive principles of state policy, the IX schedule, Judicial Activism, so on and so forth, which incidentally also embody sui generis constitutional deadlocks of Indian Polity (a topic which we will reserve for a later post).
Nevertheless, as has been mentioned in the description of this blog, there were other considerations that affected the choice of topic and federalism won (pun unintended). Having settled on the topic a background research on the origin and evolution of federalism and its implementations in other more federal countries (which I concede was like opening the pandora's box - there's an entire journal of Oxford Press devoted only to federalism) seemed inevitable. However on a more cheerful note, several vague themes started materialising from these comparisons. Discussions on constitution can become fairly technical and a discussion on topics like federalism especially more so. There was a danger of it veering off into technicalilities (a more appropriate word would be 'tangents') of federal and unitary features and their antagonism, but for the emergence of the aforementioned themes. What follows is an attempt to expand them into something more concrete, though hopefully not too technical.
1. Dysfunctions of Imposition of Federal structure on the Westminster Model
There is a fundamental difference between the federal structures of US and Switzerland on one hand and India and Canada on the other, which has nothing to do with their operational features. The former experienced a natural evolution as part of evolution of their political systems, while the latter were surgical implantations on the base of the pre-existing Parliamentary systems of government. Consequencially, the dysfunctions that ensued were completely unique and will neither find a precedent nor a solution in the federal structures of the US or Switzerland.
The office of Governor has been the most controversial in this regard. In spite of being the ceremonial head of a state (like the monarch in UK), he works during the pleasure of the President (who has to work with the aid and advice of his Council of Ministers), in turn making him responsible to the Union Government. His power of discretion and his appointment (and NOT election) only further strengthen our case.
Another feature of Westminster system that tends to work against federalism is the overlap between the political executive and the legislative arm of the government. This overlap combined with the limited powers of Rajyasabha and the unequal representation given to different states completely punctures the inherent but not very apparent protection that presidential system provides to federalism.
2. Federalism - A Dynamic Equilibrium
Constitutional experts have made several attempts at trying to fit the Indian form of federalism into federalism's textbook definitions, with terms like Co-operative Federalism (Granville Austin) or Quasi-federalism (K.C.Wheare). For an amateur like me, Dr.Ambedkar's explanation that "Indian political system is both unitary as well as federal according to the requirements of time and circumstances" appears far more plausible.
[1] tends to concur with Dr.Ambedkar's viewpoint that federalism is an ongoing process of achieving a dynamic equilibrium between unitary and federal features. The catch here is that the process of clinching the equilibrium, and a dynamic one at that, needs a more fluid (amendable) constitution. Indian Constitution falls in the category of rigid constitutions and far more importantly, the constituent states can neither initiate the process of amendment nor are they required to be consulted on most of the occasions.
As the constitution does not provide any explicit means to the states to participate in the process or rather more precisely does not even recognise their locus standi in the process, progressive use of extra-constitutional means has become apparent over years. Rise of regional political parties that arm-twist the central government in this era of coalition politics, rising enmity and competition between states are indications that India is in a dire need of decentralisation that will at the very least provide some constitutional and more explicit means to the states to demand for and co-operate with the Union Government to reach this dynamic equilibrium.
3. Need for federalism and the continuum of federation-union
One of the most confusing outcomes of the comparisons between Indian and American federalism was the very need for it. Despite being traditionally accustomed to unitary and centralised form of Political structures the framers of the Indian Constitution introduced several federal features in it. Following can be said to be the characteristics that can render federal form of government more desirable than a unitary system
i. Vast geographical expanse
ii. linguistic, cultural, religious diversity
iii. regional inequalities among states
Indian example satisfies all three conditions. India is a very large nation, with a state-wise division largely based along linguistic lines and geographical proximity.
US on the other hand has a far more homogenous population. Lines of Linguistic, cultural divisions do not coincide with those of geographical origin (for the obvious reason that these cultures were imported into America and as such its geography had no implication on them). This is corroborated by the fact that tendency of balkanization is non-existant in US. Consequently the confusion as to why the US should have developed such a rigid federal structure, when decentralisation would have been sufficient to tackle the geographical vastness.
If we plot Indian and American forms of federalism on a continuum with a true federation at one end and a true union at the other, the US is closer to the federal end than India inspite of India having more ideal circumstances for a federal structure. The reason for this is the direction of movement along this continuum and the initial inadvertent exclusion of a point, which is farther away from the unitary system than the federal one. The current position of the US on this continuum should be considered not in isolation but as the consequence of its movement (flow and not stock) from a Confederate structure towards a federal structure. Thus, albeit less unitary than India, US has progressively become more unitary than, when it began as a nation state in the 18th century. The ideological divisions between the two political parties in US, the Republicans and the Democrats substantiates this claim. While Democrats want a more centralised polity, the Republicans prefer a federal structure. On the other hand starting from a purely unitary form of government India has become more federal than it was in the past, and by the looks of it the movement will continue in responce to the changing circumstances.
With these three themes my knowledge on federalism stands exhausted. When I started background reading for this post the aim was to be able to write intelligibly on federalism and its implications on Indian political system. In the process I also seem to have satisfied my penchant for theorising. I admit I took a mostly descriptive approach in spite of being a critic of Behaviouralism. But a prescriptive approach would have taken us to the most commonly discussed topics on federalism, which I chose to avoid for the obvious reason that with my limited knowledge in this field I would have very less to offer on things that have already been discussed so extensively in academic books (and journals too, apparently). To conclude this post and defer any further discussion on federalism to a future revisit, I would like to quote Alexander Pope here (which would render the entire discussion moot)
"for forms of Government let the fools contest, what is best administered is best"
Nevertheless, as has been mentioned in the description of this blog, there were other considerations that affected the choice of topic and federalism won (pun unintended). Having settled on the topic a background research on the origin and evolution of federalism and its implementations in other more federal countries (which I concede was like opening the pandora's box - there's an entire journal of Oxford Press devoted only to federalism) seemed inevitable. However on a more cheerful note, several vague themes started materialising from these comparisons. Discussions on constitution can become fairly technical and a discussion on topics like federalism especially more so. There was a danger of it veering off into technicalilities (a more appropriate word would be 'tangents') of federal and unitary features and their antagonism, but for the emergence of the aforementioned themes. What follows is an attempt to expand them into something more concrete, though hopefully not too technical.
1. Dysfunctions of Imposition of Federal structure on the Westminster Model
There is a fundamental difference between the federal structures of US and Switzerland on one hand and India and Canada on the other, which has nothing to do with their operational features. The former experienced a natural evolution as part of evolution of their political systems, while the latter were surgical implantations on the base of the pre-existing Parliamentary systems of government. Consequencially, the dysfunctions that ensued were completely unique and will neither find a precedent nor a solution in the federal structures of the US or Switzerland.
The office of Governor has been the most controversial in this regard. In spite of being the ceremonial head of a state (like the monarch in UK), he works during the pleasure of the President (who has to work with the aid and advice of his Council of Ministers), in turn making him responsible to the Union Government. His power of discretion and his appointment (and NOT election) only further strengthen our case.
Another feature of Westminster system that tends to work against federalism is the overlap between the political executive and the legislative arm of the government. This overlap combined with the limited powers of Rajyasabha and the unequal representation given to different states completely punctures the inherent but not very apparent protection that presidential system provides to federalism.
2. Federalism - A Dynamic Equilibrium
Constitutional experts have made several attempts at trying to fit the Indian form of federalism into federalism's textbook definitions, with terms like Co-operative Federalism (Granville Austin) or Quasi-federalism (K.C.Wheare). For an amateur like me, Dr.Ambedkar's explanation that "Indian political system is both unitary as well as federal according to the requirements of time and circumstances" appears far more plausible.
[1] tends to concur with Dr.Ambedkar's viewpoint that federalism is an ongoing process of achieving a dynamic equilibrium between unitary and federal features. The catch here is that the process of clinching the equilibrium, and a dynamic one at that, needs a more fluid (amendable) constitution. Indian Constitution falls in the category of rigid constitutions and far more importantly, the constituent states can neither initiate the process of amendment nor are they required to be consulted on most of the occasions.
As the constitution does not provide any explicit means to the states to participate in the process or rather more precisely does not even recognise their locus standi in the process, progressive use of extra-constitutional means has become apparent over years. Rise of regional political parties that arm-twist the central government in this era of coalition politics, rising enmity and competition between states are indications that India is in a dire need of decentralisation that will at the very least provide some constitutional and more explicit means to the states to demand for and co-operate with the Union Government to reach this dynamic equilibrium.
3. Need for federalism and the continuum of federation-union
One of the most confusing outcomes of the comparisons between Indian and American federalism was the very need for it. Despite being traditionally accustomed to unitary and centralised form of Political structures the framers of the Indian Constitution introduced several federal features in it. Following can be said to be the characteristics that can render federal form of government more desirable than a unitary system
i. Vast geographical expanse
ii. linguistic, cultural, religious diversity
iii. regional inequalities among states
Indian example satisfies all three conditions. India is a very large nation, with a state-wise division largely based along linguistic lines and geographical proximity.
US on the other hand has a far more homogenous population. Lines of Linguistic, cultural divisions do not coincide with those of geographical origin (for the obvious reason that these cultures were imported into America and as such its geography had no implication on them). This is corroborated by the fact that tendency of balkanization is non-existant in US. Consequently the confusion as to why the US should have developed such a rigid federal structure, when decentralisation would have been sufficient to tackle the geographical vastness.
If we plot Indian and American forms of federalism on a continuum with a true federation at one end and a true union at the other, the US is closer to the federal end than India inspite of India having more ideal circumstances for a federal structure. The reason for this is the direction of movement along this continuum and the initial inadvertent exclusion of a point, which is farther away from the unitary system than the federal one. The current position of the US on this continuum should be considered not in isolation but as the consequence of its movement (flow and not stock) from a Confederate structure towards a federal structure. Thus, albeit less unitary than India, US has progressively become more unitary than, when it began as a nation state in the 18th century. The ideological divisions between the two political parties in US, the Republicans and the Democrats substantiates this claim. While Democrats want a more centralised polity, the Republicans prefer a federal structure. On the other hand starting from a purely unitary form of government India has become more federal than it was in the past, and by the looks of it the movement will continue in responce to the changing circumstances.
With these three themes my knowledge on federalism stands exhausted. When I started background reading for this post the aim was to be able to write intelligibly on federalism and its implications on Indian political system. In the process I also seem to have satisfied my penchant for theorising. I admit I took a mostly descriptive approach in spite of being a critic of Behaviouralism. But a prescriptive approach would have taken us to the most commonly discussed topics on federalism, which I chose to avoid for the obvious reason that with my limited knowledge in this field I would have very less to offer on things that have already been discussed so extensively in academic books (and journals too, apparently). To conclude this post and defer any further discussion on federalism to a future revisit, I would like to quote Alexander Pope here (which would render the entire discussion moot)
"for forms of Government let the fools contest, what is best administered is best"
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