Only the last phase, covering 86 constituencies, remain to vote in the ongoing general elections. Hopefully, this phase too will be peaceful. When we adopted our Constitution, the then Prime Minister of Britain, Sir Anthony Eden, said: “Of all the experiments in government, which have been attempted since the beginning of time, I believe that the Indian venture into parliamentary government is the most exciting... The Indian venture is not a pale imitation of our practice at home, but a magnified and multiplied reproduction on a scale we have never dreamt of.”
Indeed, during these six decades, we have consolidated this process and enriched its content by fine-tuning the system to express more universally the vast diversity of our social order. My last two columns dealt with the imperative to retain the parliamentary system as opposed to a USA-type bi-polar presidential system and the need to introduce a system of partial proportional representation to further enrich our democracy. There are two other issues that merit serious consideration.
Like many modern Constitutions, India also incorporated the Republican benchmark laid down by the French philosopher, Charles de Montesquieu. He stressed on the necessity for checks and balances in Constitutional governance by pointing out the dangers inherent in the concentration of legislative, executive and judicial powers in one authority.
Our Constitution, while laying down the structure for these three wings to play a separate yet joint and participatory role, incorporated as its centrality, the sovereignty of the people. Our Preamble defines this, “We, the people of India... do hereby adopt, enact and give to ourselves this Constitution.” This centrality is exercised by the executive (government) being accountable to the legislature (Parliament/Assemblies) which, in turn, is accountable to the people.
The Parliament, thus, apart from being the supreme law-making body, also exercises its check on the government by making its activities accountable. The efficiency of this mechanism depends, to a large extent, on the duration and proper conduct of parliamentary proceedings. On this score, there is, on the basis of experience, much need for corrective action. During the last two decades, Parliament never sat for more than 100 days in a year. The closest was in 1992 with 98 sittings. The 14th Lok Sabha was the least attended in Parliament’s history with 332 sittings (an average of 66 a year). Worse, 24 per cent of this time was wasted in disruptions and adjournments. On an average, the British Parliament sits for at least 160 days a year.
Clearly, unless Parliament sits for longer durations, its vigilance over the government is not effective. Thus, the executive’s accountability to the legislature becomes the casualty. This seriously undermines our Constitutional scheme of things, engendering authoritarian tendencies. This needs to be corrected by ensuring a mandatory 100 sittings a year through a constitutional amendment, if necessary.
The second issue relates to the role of the judiciary as being both the interpreter of the Constitution and the law, the custodian of the rights of citizens through the process of judicial review and the delivery of justice. By 2007, over 3 million cases were pending in India’s 21 High Courts and a staggering 26.3 million cases were pending in subordinate courts across the country, with nearly 3,00,000 undertrials languishing in jails across the country.
As of February 2009, 50,310 cases were pending before the Supreme Court. Justice delayed is justice denied. The system of delivery of justice, thus, needs to be urgently beefed up. Further, recent experiences of judicial activism have blurred the delineation among the three organs of democracy. The judiciary interprets the law but cannot make laws or decide on public policy. The constitutional mandate is for judicial review and not for judicial activism.
The inadequacies of the executive are often cited as the basis for the judiciary to intervene. This is a dangerous argument. For, given the huge number of long-pending cases, similar logic for bypassing the judiciary can be advanced, thus, seriously undermining our system. The judiciary needs to return to the domain of the executive all matters that come up before it which should be dealt with exclusively by the executive rather than pronouncing orders and instructions. The additional problem in the discharge of executive responsibilities by any other organ remains unaccountability. Accountability differentiates democracy from other systems of governance. Such judicial activism is, thus, anathema.
The time has come for us to seriously consider the establishment of a National Judicial Commission with representatives from the three wings and the Bar. This could deal with an entire range of issues from the appointment and transfer of judges, examining complaints of corruption and other expressions of possible judicial misconduct and for ensuring judicial accountability.
Notwithstanding the din of electoral politicking, the government that follows these elections must seriously consider such measures for further enriching Indian democracy.
Sitaram Yechury is CPI(M) Politburo member and MP.