The Indian Constitution through the Lens of Power – II: The Legislature and the Executive

  —Gautam Bhatia, Advocate, New Delhi and independent legal scholar

[Editor’s Note: This is one of our ICONnect columns. For more on our 2023 columnists, see here.]

 In the opening post of this series, I proposed  an approach to the Indian Constitution that views it as a terrain of contestation between different – and opposed – visions of power. The previous post also considered the relationship between the centre and the states (“federalism”) as the first such axis of power, and the judgment in State of West Bengal vs Union of India (1962) as an inflection point that privileged a centralising reading of Indian federalism over a federalising reading.

While the federal structure deals with the vertical distribution of power (between levels of government), this post will consider the horizontal distribution of power: that is, between the legislature and the executive.

Formally, and according to its Constitution, India is a bicameral parliamentary democracy. As is well known, in parliamentary systems, the executive is drawn from the legislature and has agenda-setting rights, and therefore (except in situations of a hung parliament or wafer-thin majorities), there is often a tendency for the executive to dominate the legislature. Parliamentary democracies have various safeguards to mitigate this dominance: these include the “backbench” that can exercise control over the majority party by withholding their vote, opposition party rights, and an independent Speaker whose task is to defend the interests of the House against the executive. In addition, in bicameral systems, the Upper House – which is meant to represent federal interests, and may not always be under the control of the same party that has a majority – serves as an additional check against the concentration of power.

However, a combination of design flaws and political and judicial practice has, over the years, undermined these checks, and contributed towards the horizontal centralisation of power in the hands of the executive, at the expense of the legislature.[1]

The most glaring example of this is the Tenth Schedule to the Indian Constitution, popularly known as the “anti-defection law.”[2] Introduced in 1985 as a constitutional amendment, with the ostensible purpose of putting an end to unprincipled cross-party defections, the Tenth Schedule effectively states that if an MP votes against the party whip, they will be disqualified from the House.[3] The effect of this is to wipe out intra-party dissent on the floor of the House, and subordinate the backbench to the party leadership (which is, for all practical purposes, the cabinet, or the executive).

The second and third instances take the form of constitutional silences. The Indian Constitution does not entrench opposition party rights: both with respect to control of the House, as well as membership of parliamentary committees, the formal Opposition has no effective powers[4]. A recent – glaring – example of this has been a summoning of a “special session” of Parliament by the executive for later in September, where even the agenda or list of business has not been made available to the Opposition. In that sense, it has been seen in recent years that a substantial amount of legislation takes place through ambush and surprise, rather than deliberation and debate.

And finally, the Constitution does not guarantee the independence of the Speaker. In practice, the Speaker remains a member of the majority party; consequently, Speaker independence depends upon the individual who occupies the post, rather than something that is baked into constitutional design.

The lack of independence of the Speaker has a knock-on effect upon the bicameral check upon executive power. As in many other democracies, while regular bills have to be passed by majorities in both houses, when it comes to the money bill, the Upper House only has the power to suggest amendments, and not to veto the bill. However, under the Constitution, the power to certify a bill as a money bill lies with the Speaker.[5] The problem is not academic: in recent years, there have been frequent accusations that the Speaker actively misclassifies bills as money bills, so as to avoid Upper House scrutiny. The most glaring example of this was the classification of a National Digital Identification Bill [“the Aadhaar”] as a money bill, apparently on the ground that setting up the Unique Identification Authority of India required funds drawn from the Consolidated Fund of India.[6] This was challenged in Court, and a resolution of the issue – including the question of whether the Speaker’s decision is subject to judicial review – is still awaited.

We can, therefore, see that the structural, or design checks upon the concentration of power in the executive in a parliamentary system have been significantly eroded in India, through a combination of (arguably) defective constitutional design, political practice, and judicial quiescence. The institutions tasked with checking the executive in the House – that is, the ruling party’s backbench, the Opposition, the Speaker, and the Upper House – are either weakened or ineffective, through an overlapping set of constitutional provisions and constitutional silences.

Over and above this, the Indian Constitution also institutionalises a (temporary) rule by decree. At both the level of the centre and the state, the Constitution authorises executive law-making through the power to issue “ordinances” that have the “force and effect” of law, while parliament is not in session.[7] While the intent behind these provisions was that they be used as emergency measures, their loose wording ensures that, over the years, Ordinances have become parallel – if not dominant – sources of law-making. While a 2017 judgment of the Supreme Court attempted to narrow down the scope of the power, it is notable that in the last six years, not a single Ordinance has been subjected to a successful constitutional challenge.[8]

In sum, therefore, this second axis of power – the executive and the legislature – bears similar hallmarks of the “centralising drift” that I discussed in the previous post, in the federal context. The reasons for the drift, in this case, have more to do with constitutional design than with the judgments of courts; stemming the drift, therefore, would require courts to read significantly against the grain of the constitutional text. The pending case about judicial review of the speaker’s classification of money bills will perhaps be the first test of that.  

Suggested citation: Gautam Bhatia, The Indian Constitution through the Lens of Power – II: The Legislature and the Executive, Int’l J. Const. L. Blog, Sept. 8, 2023, at: http:/www.iconnectblog.com/the-indian-constitution-through-the-lens-of-power-II-the-legislature-and-the-executive/

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[1] As shall be shown, this goes beyond the drift towards an “executive presidency” that has been noted throughout the world, over the last few decades.

[2] Tenth Schedule, Constitution of India.

[3] The constitutionality of the amendment was upheld by the Supreme Court in Kihoto Hollohan vs Zachilhu, (1992) SCR 1 686, on the basis that legislators were overwhelmingly elected on a party ticket.

[4] Meenakshi Ramkumar and Aishwarya Singh, “The Road Not Taken: India’s Failure to Entrench the Rights of the Opposition” (2021-2022) 6(2) CALJ 55.

[5] Article 110, Constitution of India.

[6] The Aadhaar Act, 2016.

[7] See e.g. Article 123, Constitution of India.

[8] Krishna Kumar Singh vs State of Bihar, (2017) 3 SCC 1.