Constitutional Posts and Constitutional Bodies (DAMP)
- Define ‘constitutionalism’ and highlight different ways in which the Indian Constitution emphasizes and upholds this principle.
- Highlight important privileges enjoyed by each House of Parliament collectively and its members individually and discuss their significance.
- Why did the Constituent Assembly shifted from the proposal of electing governors to opting for their appointment by the President? Additionally, highlight the criticisms and objections raised against the existing method of appointing Governors. (10 Marks, 150 Words)
Constitutionalism means that a government shall be bound by limitations, checks, controls and rules. The Supreme Court of India, in the IR Coelho case, held that Constitutionalism is a legal principle that mandates control over the exercise of governmental power to ensure that the democratic principles on which the government is formed shall not be destroyed. It incorporates the principle of ‘rule of law’, as against arbitrary and authoritarian discharge of power. It requires the existence of ‘limited government’ i.e. what the government can and cannot do. Any country that has a democratic governmental system is an example of a limited government.
The various ways in which the Indian Constitution ensures that the spirit of constitutionalism in India is maintained, are as follows:
• Written Constitution: The written nature of the Constitution acts as a limitation on the powers of the government and ensures that it acts as per the authority of the Constitution.
• Responsible government: The parliamentary form of democracy provided in the Constitution makes the government accountable for its day-to-day activity.
• Rule of law: The Constitution of India provides for all citizens to be governed by the same set of law administered through the same system of courts and that no one is above the law, thus ensuring that the state does not act arbitrarily.
• Fundamental rights: Part III of the Constitution provides that the state cannot abridge any fundamental right arbitrarily and must conform to the norms laid by the Constitution itself. Thus, this part acts as a limitation on the powers of the government and the Parliament.
• Separation of powers and checks and balances: Indian Constitution while following separation of powers ensures that there exist checks and balances to undo/prevent any unconstitutional act by the state which include but is not limited to various tools like judicial review, bicameral legislature, rigid process of constitutional amendment for some provisions etc.
• Independent judiciary and judicial review: Judiciary has been assigned the role of final interpreter of the Constitution. As such, it has the power of declaring any act of the other two organs of the government as unconstitutional by way of judicial review. Our Constitution has ensured that the Judiciary remains independent from any undue influence of other two organs of the state so as to act as an impartial arbitrator in legal disputes.
• Flexibility of Constitution and its basic structure: The Indian Constitution while allowing some provisions to be amended easily also contains some provisions, which cannot be amended at all. These provisions are known as ‘Basic Structure’, which acts as a limitation on the constituent powers of the Parliament.
- A federal form of government: Federal form of government as provided in the Constitution derives its power directly from the Constitution and is supreme in its own sphere except in certain cases. This ensures that the various levels of the Government have to work in a cooperative spirit to successfully discharge their duties.
Thus, Constitutionalism is at the core of a democratic government and the Indian Constitution contains various principles which have over the time ensured that ‘Constitutionalism’ is followed in the working of the state.
Parliamentary privilege is the sum of certain rights and immunities enjoyed by each House collectively and by members of each House individually, without which they may not be able to discharge their functions effectively, and which exceed those possessed by other bodies or individuals.
Indian constitution under Article 105 empowers Parliament to codify parliamentary privileges. However, no such laws have been brought yet and those privileges available to the house, members and its committees available before the commencement of the constitution are being followed till date.
Privileges of the House collectively:
• Right to publish debates and proceedings and the right to restrain publication by others. However true reports of parliamentary proceedings can be published by press.
• Right to exclude strangers from its proceedings and hold secret sittings.
• Right to regulate internal affairs of the House and to decide matters arising within its walls:
o Regulate its own procedure and conduct of business and to adjudicate upon such matters.
o No person can be arrested, and no legal process (civil or criminal) can be served within the precincts of the House without the permission of the presiding officer.
o The courts are prohibited to inquire into the proceedings of a House or its committees.
o House receives immediate information of the arrest, detention, conviction, imprisonment and release of its Member.
• Right to punish members and outsiders for breach of its privileges by reprimand, admonition or imprisonment (also suspension or expulsion in case of members).
Privileges enjoyed by the members individually:
• Complete Freedom of speech for anything said or any vote given by him/her in Parliament or its committees.
• Freedom from arrest in civil cases during the session of parliament and 40 days before the beginning and 40 days after the end of a session.
• Freedom to refuse to provide evidence or be a witness in a case pending in a court when parliament is in session.
• Enables free and fair discussion by enabling the members to speak out their mind and expressing their views in the House without any fear.
- Prevents willful misrepresentation of debates or premature publication of proceedings.
• Internal autonomy serves as a natural corollary of the immunity from proceedings in a court of law in respect of anything said or done inside the House.
• Prevents obstruction to members from attending their parliamentary duty (in case of arrest).
• Ensures that the attendance of a member in the House takes precedence over all other obligations such as being a jury/witness to a case.
Thus, these privileges are important for both the Houses to maintain their authority, dignity and honour and support its members in the discharge of their parliamentary responsibilities.
Q: Why did the Constituent Assembly shifted from the proposal of electing governors to opting for their appointment by the President? Additionally, highlight the criticisms and objections raised against the existing method of appointing Governors. (10 Marks, 150 Words)
The Governor is the Chief Executive head of a state in India. There was a unanimous understanding in the Constituent Assembly that Governors will be agents of the Central government, almost like the Governors appointed during the British rule. However, the Assembly was initially divided on the method of election of the Governor and his/her role in the state.
Eventually, the Assembly concluded that a directly elected Governor would challenge the authority of the Chief Minister. They did not want alternate centers of power at the state level. Further, they adhered to the Parliamentary Executive system, wherein the heads of the state and government were to be elected indirectly and directly respectively. Also, since the Governor plays a unique role in the balancing the scheme of Indian federal system, thus, it was agreed that the Governor would be appointed and removed by the President, who shall hold office during the ‘pleasure of the President’.
The arguments that are raised against the current form of appointment of Governors include:
• Instability: The appointment and removal of the Governors are deemed to be abrupt as they are frequently changed when there is a change in the government at the Centre. In B.P. Singhal Vs. Union of India (2010), the SC stated that Governors should not be removed or transferred arbitrarily.
• Nepotism: The ruling parties have often used the office of the Governor to reward loyalists and thus it has become retirement home for politicians.
• Misuse of Constitutional provisions: There have been instances when the Governors have arbitrarily imposed Article 356 in the states upon the directives of the Central government.
• Seen as representatives of the center: The Governors are deemed as ‘agents of the Centre’ by the state governments who feel that they serve the interests of the Centre as opposed to states’ interests.
• Misuse of discretionary power: The Governor’s discretionary power under Article 163 has been misused despite it being a limited power. E.g. Reserving bills for the consideration of President under article 213.Thus, the arguments against the current form of appointment are centered on the issue of arbitrary decision-making and exclusion of the state Executive in this regard. In this context, the Venkatachalliah and Punchhi Commissions have argued for the security of tenure of the Governors and localizing of Emergency provisions under Articles 355 and 356 of the Constitution.
Similarly, the Sarkaria Commission opined that the Governors should be allowed to complete their tenure of five years except for extremely compelling reasons. Governorships should be given to eminent persons with impeccable credentials rather than treating it as a post-retirement job for politicians.
The Governor is the head of the state. Therefore, it is pertinent to maintain the integrity of his/her office by addressing the concerns related to the current form of appointment of governors.