(c) by Natarajan S
This article is the personal view of the Guest author
Major democracies differ in their formation and constitution. U.K. follows a west minister system. USA follows a Presidential system. Both the Westminster system and the Presidential system are very successful and are equally highly regarded forms of government. However, there are many significant differences between these two systems. British former colonies, India, Australia, New Zealand, Canada , etc., adopted the west minister systems. Key aspects of the system include an executive branch made up of members of the legislature in one or two houses(upper/lower), and that is responsible to the legislature; the presence of parliamentary opposition parties; and a ceremonial head of state who is different from the head of government. The term comes from the Palace of Westminster, the current seat of the Parliament of the United Kingdom. The constitution is considered paramount in this system. Under the constitution the 3 branches, namely, Legislature, Executive and Judiciary operate. PM is the head of Executive branch as long as he commands the working or coalition majority of the legislature. Judiciary is an equal entity to Legislature – but it is there to protect and interpret constitution to the letter and spirit. Executive branch is the implementer, executive of the legislations passed by legislature. On the other hand, the presidential system like USA Government, is a form of government in which the president is the chief executive and is elected directly by the people. In this system all three branches – executive, legislative, and judiciary – are constitutionally independent of each other, and no branch can dismiss or dissolve any other. The president is responsible for enforcing laws, the legislature for making them, and the courts for judging. Each is given specific powers to check and balance the others. Presidential System the directly elected President has only executive power. The Senate and House pass all legislative acts. Most of the time Presidents don’t have their party majorities in either or both of Senate and House. So those Presidents cannot do much. In that system it is campaigning, taking up the causes and convincing legislatures becomes high volatile bipartisan system. Making things happen or change in US is routinely made difficult, not even disbursal of salaries of Government employees are guaranteed. There were many occasions when routine finance appropriations were blocked so salaries were held till something is settled. Appointment of every agency and even Judges comes under executive wing, nominations by President but to be confirmed by legislative wing. There are many research reports pointing out that worldwide innovation and change in democratic techniques and ideals continued. But after the Constitution was codified, and the American system has not adopted all of those new ideas, because of the bipartisan extreme views not easily allowing changes. American Constitution’s founders were partially constrained by public opinion, which included maintenance of the sovereignty of the thirteen states. Those public opinions changed quite a lot now.
Compared to that, in the West Minister system, as only a majority party leader in legislature can become PM, the business of executives is proved quite easy in many countries, except where Bills requiring more than simple majority numbers as in the case of 2/3rd for constitutional amendments, or in coalition governments where parties differ ideologically.
BJP as I understood from long ago is having a liking for a Presidential from of Government like USA. If our constitution is totally withdrawn and new constitution like USA is introduced then only BJP’s dream can be possible, but its desirability of Presidential system in India is very much questionable, seeing USA politics and lack of decision-making authorisations.
But in thinking about American system, I think BJP either didn’t understand fully all nitty-gritties of American system or its aim is introducing a Presidential System in current west minister style itself where executive as well as legislature are controlled by majority party elected head I can see the confusion in the minds of BJP when they want to take Judicial appointment into executive control, when they want all agency control under executives, when they have their consistent tilt at taking control of RBI as well as Election Commission, when they try everything possible to take over control of Judiciary.
An adopted American system without the powers of Parliaments to control the actions of President will just be called autocracy, that is what it appears to be happening, without or with full understanding.
Parliamentary legislation and legislative power are not absolute in any country. They are subject to limitations. First and foremost is a test of practical possibility of implementation of the legislation in a particular country. I feel quite a number of India’s acts that are adapted from other country’s example didn’t pass the test.
I try to explain from China’s example
- China’s one-child policy started in 1980 and was strictly enforced with punishments including fines for violators and often forced abortions. This policy worked perfectly in China because of multiplicity of reasons including Communism. There were no public outcry for this. Every one cooperated.
- China officially ended its one-child policy in January 2016 in favour of a two-child policy before it introduced a three-child policy in May 2021
But India also had tried a Birth Control regime, but it was during emergency time Emergency was in effect from 25 June 1975 to its withdrawal on 21 March 1977.In September 1976, Sanjay Gandhi initiated a widespread compulsory sterilization program to limit population growth. There were allegations of coercion of unwilling candidates too. In 1976–1977, the program led to 8.3 million sterilizations, most of them forced, up from 2.7 million the previous year. This was example of totally failed and misused legislation. The bad publicity led many 1977 governments to stress that family planning is entirely voluntary. Even otherwise a free Supreme Court would have struck this as both affecting fundamental right as well as against basic structure of the constitution.
I think I have opened a pandora’s box in distinguishing the Supreme Court strikes on two major principles/premises., so is Vice President of India recently.
Supreme Court Strikes on legislations are aimed at 1) removing possible violation of any fundamental rights 2) making sure that No amendment to the Constitution should have the effect of destroying any of its basic features.
While the first limitation on Fundamental Rights is set out in Article 13, under which laws inconsistent with or in derogation of fundamental rights are void, the second limitation is based on the ‘basic structure’ doctrine evolved by the Supreme Court.
Vice-President Jagdeep Dhankhar has questioned the basic structure doctrine propounded in the landmark Kesavananda Bharati case (1973) as in his opinion it does not reflect the correct position of law. In his view, the basic structure doctrine has usurped parliamentary sovereignty and goes against the democratic imperative that the elected legislature should reign supreme. His particular concern seems justified: that the Supreme Court prevented the National Judicial Appointments Commission, a body to appoint judges to the superior courts in the country, from coming into existence by striking down the relevant amendment to the Constitution and a parliamentary law to give effect to it. But it is difficult not to see his attack on the basic structure doctrine as part of the current dispensation’s tirade against the judiciary and its grievance that it does not have enough say in the appointment of judges.
The idea that the basic structure doctrine undermines parliamentary sovereignty is simply wrong. Parliament is sovereign in its domain, but it is still bound by the limitations imposed by the Constitution. As we have seen in both Presidential system and West Minister system both have not given absolute power to any of the three branches – but each pillar of constitution is in check with the other.
The Basic structure of constitution only gave birth to the three branches. It is the nature of our political design that the court, as an independent body, is tasked with the role of acting as the Constitution’s final interpreter, with a view to translating, as Justice Robert H. Jackson of the U.S. Supreme Court once wrote, abstract principles into “concrete constitutional commands”. It may well be the case that the basic structure doctrine is derived from the abstract. But that scarcely means it doesn’t exist within the Constitution.
Now, consider Conrad’s extreme example: were an amendment to be introduced relinquishing control over India to a foreign power, would it not result in the creation of a constitution that is no longer the Constitution of India? Would not such an amendment strike at the root of the Constitution’s Preamble, which, in its original form, established India as a sovereign democratic republic? On any reasonable analysis it ought to, therefore, be clear that the basic structure doctrine is not only grounded in the Constitution’s text and history, but that it also performs an important democratic role in ensuring that majoritarian governments do not destroy the Constitution’s essential character.
Mr. Dhankhar seems to have a problem with any sort of limitation on Parliament’s jurisdiction to amend the Constitution. Surely, he could not have forgotten that the basic structure doctrine had helped save the Constitution from being undermined through the misuse of parliamentary majority. The main purpose of the doctrine is to ensure that some fundamental features of the Constitution are not legislated out of existence. It has been invoked to strike down amendments only in a few cases, but many others have survived basic structure challenges. Parliamentary majority is transient, but essential features of the Constitution such as the rule of law, parliamentary form of government, separation of powers, the idea of equality, and free and fair elections ought to be perennially protected from legislative excess. It may be open to a new Constituent Assembly to come up with another constitution that changes these fundamental concepts, but a legislature formed under the current Constitution cannot be allowed to change its core identity.