Free and fair elections lend credibility to the elected government in any democracy. When loophooles in existing laws are exploited to topple and replace governments without a re-election by ostensibly influencing the state’s governor, it is nothing short of making a mockery of the democratic process which is delerious to the very legitimacy of the political establishment. If such shenanigans happen when the country is grappling with an unprecedented pandemic and a border conflict, it further detoriates the trust that people put in the government. In an article talking about the political bedlam that the country has recently witnessed in the form of horse trading of MLA’s in Rajasthan and Madhya Pradesh, Mr. Shashi Tharoor, arguably one of the most erudite parliamentarians in the country opined that the fault lies in an unsound system which has led to the following issues-

1. Genesis of incompetent legislators who seek to get elected coveting executive power.

This further gives rise to 4 specific issues. (a) Limiting the executive posts to those who are electable rather than those who are capable. (b)In case of a hanging Parliament, the PM cannot elect a cabinet of his choice, catering to the whims and fancies of other political parties. (c)Majority of the laws are drafted by the executive (bureaucracy) with minimal parliamentary input. (d)MP’s vote on an issue mindlessly in accordance to the stance which their parties have assumed. (e)Opposition parties do not partake in fruitful deliberations, rather use the parliament as a theater for demonstrating their power to disrupt.

2. Government of the day is formulated on fickle legislative majorities which obliges them to focus “more on politics than policy and performance”

3. The voting preference of the electorate is distorted, people know which individual they want to cast their vote for, but not necessarily which party they want to see in power.

4. It leads to vote bank politics which is detrimental to a pluralist society like India.

5. Parties are relegated to labels of convenience for the politicians, who easily discard them once their purpose is served.

6. In order to see a specific person as the head of state, people on a local level have to vote for someone they may not deem a fit candidate in order for the person to be indirectly elected as the PM or the CM.

In order to addresse these issues, Mr. Tharoor advocates for a Presidential form of government. This would, in his opinion, ensure stable tenures devoid of legislative interference for the head of states since the government will not be in the danger of capsizing if a few legislators tender their resignation, a cabinet elected on meritocracy allowing the government to devote their energies to governance.

The author concurs with the legitimacy of the lacunae put forth by Mr. Tharoor, however in the author’s wisdom the reason for these is erroneously ascribed to a parliamentary form of government. Since a majority of the lacunae enumerated above blight presidential democracies as well. Focussing more on politics rather than policy is equally prevalent in America, where the tragic passing away of a person of color is politicised as it is in India,where the tragic subjugation of dalits is politicised. This polarization is a deficiency of democratic governments as a whole in majority of pluralist democracies irrespective of their form: Presidential or Parliamentary. It is pertinent to note that even an absolutely insulated legislature does not exhaust the  possibility of bunch of legislatures acting nefariously in order to disrupt the smooth transaction of business in the house or opposition parties inducing the legislators of an opposing party

In the author’s opinion Mr. Tharoor in his article enumerated the lacunae arising due to pliantness of seperation of powers in the Indian system and the enmeshed nature of the executive and the legislature. Hence, the crux of the issue is whether India today is at a juncture where contrary to the wishes of the constituent assembly, a more rigid seperation of powers is desirable.

What is Doctrine of Separation of Powers.

The doctrine enumerates three basic principles- (a) Each organ of state should perform it’s own functions. (b) No organ of government should interfere in working of another organ. (c) No person should be a part of more than one organ of government.

Progenitors of the Doctrine

The progenitor of the doctrine is understood to be Aristotle who mentioned it in his treatise appositely titled “Politics” however Montesquieu, a french legal theorist drawing inspiration from the rigid seperation of powers in the British system owing to power being shared between a monarch, a hereditary chamber and an elected assembly gave the doctrine the form as we know today. Albeit the credibility of Montesquieu’s claims about rigid separation of powers in UK at the time are contentious, partially because the hereditary chamber almost always concurred with the monarch, often to the detriment of the proletariat at large. Additionally, Blackstone played a major role in providing final touches to the doctrine. The ideas of Montesquieu and Blackstone heavily influenced the founding fathers of America and consequently, the American constitution, which might explain as to why independence of democratic institutions in America is often fallaciously ascribed to the Presidential form of government rather than the doctrine itself.

Impact of World War 2 on Seperation of Powers

In the aftermath of the war, the government’s involvement in numerous social and economic life led to increasing scope of executive leading to diminishing of rigidity of the doctrine throughout the world.

Seperation of Powers in the Indian Context

Indian constitution was being formulated in the aftermath of the second world war, a time when the efficacy of the doctrine was deemed to be in a downward spiral. Faced with the political realities of a country marred with grave inequalities, the need for a non violent social revolution called for executive supremacy and hence a rigid distinction was deemed undesirable by the constituent assembly.

Stance of the Indian Supreme Court

First major judgement of the Supreme Court in this matter was Ram Jawaya v state of Punjab,

“The Indian Constitution has not indeed recognized the doctrine of separation of powering its absolute rigidity but the functions of the different parts or branches of the government have been ssubsequfficiently differentiated and consequently it can very well be said that our constitution does not contemplate assumption, by one organ or part of the state, of functions that essentially belong to another”

Subsequently in Indira Nehru Gandhi v. Raj Narain the Supreme Court held a constitutional amendment ultra vires on the grounds that adjudication of a specific dispute is a judicial function which parliament, even under constitutional amending power, cannot exercise.

In the landmark case Keshvananda Bharti v Union of India where the SC enumerated the basic structure doctrine, Justice Beg observered

“Separation of powers is a part of the basic structure of the constitution. None of the three separate organs of the republic can take over the functions assigned to the other”

Hence, over the years as the political situation in the country stabilized, the court has stressed increasingly on the importance of separation of powers, which futher forces us to consider whether it is in best interests of adopt a more rigid stance.

While the bueaurocrats drafting laws is undesirable since it is in all essence, the executive transgressing into the role of legislature, it has it’s own merits. The executive is better aware of the ground realities and hence has a better understanding of the issues that need to be addressed or how a law is to be drafted in order to ensure optimal efficacy. Furthermore, exhaustive deliberations in the parliament on every topic is unpragmatic, for it will overburden the parliament and make the legislative process painstakingly obstuse making the enactment of laws a lengthier process which will do more harm than good. Furthermore, the executive working in tandem with the legislature ensures enhanced cohesion in their working. Situations like the legislature or the executive hindering the procedure by stalling in case of difference of opinion arises is rare.

But this does not mean that we are doomed with an imperfect system. In the author’s opinion the following steps need to be undertaken in order to prevent political ordeals like Rajasthan and Madhya Pradesh from panning out.

1. Adopting a Bottoms Up Approach to Governance

Improving the scope for local self governing bodies will lead to greater political literacy in the electorate. This can be achieved by entrusting local bodies with greater independent revenue sources. Gram panchayats faced with paucity of funds is not uncommon, sometimes having meager sums of ₹1 lakhs in their cash petty rendering the task of providing basic facilities to the masses next to impossible.

2. Democratizing Political Parties

Political parties in India are notoriously opaque in their proceedings. They are outside the ambit of the RTI Act and the electoral bond scheme passed last year further puts them outside the ambit of public scrutiny clearly indicating that the government does not aspire to bring transparency anytime soon. To make the matters worse, there is merely lip service to democratic procedures in internal functioning of these parties. Nepotism and favoritism are rampant. The lower echelons are merely moot spectators to the decision making process and the will of the “high command” is imposed on them by the fear of whips. This proves detrimental in two ways- (a). The members of the party have no sense of party allegiance and can be easily induced by promise of monetary or other gains. (b). The voting preference of the electorate is distorted, people know which individual they want to cast their vote for, but not necessarily which party they want to see in power. Since the voice of the party chief is unequivocally resonated by the party.

3. Amending the Anti-Defection Act,1985

The lacunae in the aforementioned act need to be rectified and made more robust in order to discourage legislators from resigning and toppling the government of the day. Provisions like barring a legislator from contesting the subsequent by election in order to fill the seat vacated by them.

To quote the Irish writer R. Taverner

“Better the devil you know than the devil you don’t know”

Over the better part of the past century India has accustomed herself to the Parliamentary form of government and has etched in itself, the institutional memory of the democratic institutions of a parliamentary form of government. The case for switching to a Presidential system is weak, firstly it will have to be considered whether the change is judicially tenable or whether a parliamentary form of government constitutes a part of the basic structure doctrine. Educating the masses about the switch in the system and the changes it entails is a herculean task given the diffidence of the Indian masses due to their low literacy. Even if the above criterion are met, a Presidential form will entail new challenges since no system is perfect without satiating the qualms that the current system itself poses. Ostensibly, adopting a more dogmatic doctrine of seperation of powers could also prove to be counter intuitive since cohension between Executive and Legislature seems to be efficacious for diverse country having diverse issues. The current pandemic can help us better understand this proposition. The government between March 24; the day lockdown was initiated and May 5 issued 445 notifications and two dozen clarifications for altering the enacted laws in order to cater the area specific exigencies that arise. In case of a rigid speration of powers, the pace of law making would have been retarded. Strengthening grassroot level democracy and employing a bottoms up approach along with rectifying the loopholes in anti defection laws and making political parties, the very vehicles of Indian democracy more transparent is the way forward.