Chapter 4 Working Of Institutions

Democracy is more than just electing rulers. It requires rulers to abide by certain rules and procedures, working within established institutions. This chapter explores how these institutions function in a democracy by examining how major policy decisions are made, implemented, and how disputes regarding these decisions are resolved in India.

The chapter identifies three key institutions vital to major decision-making: the legislature, executive, and judiciary. Building on previous knowledge, it summarises their roles and connections, asking what makes their functioning more or less democratic. The goal is to understand their collective contribution to government work.

Examples are drawn from the national level (Central Government, Union Government, Government of India), encouraging readers to relate these to the functioning of their state governments.

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How Is A Major Policy Decision Taken?

A seemingly ordinary government order, an Office Memorandum (O. M. No. 36012/31/90-Est (SCT)), issued on August 13, 1990, by a Joint Secretary in the Ministry of Personnel, Public Grievances and Pensions, serves as the starting point to understand how major policy decisions are made and implemented in India. Despite its brief, one-page format, this order announced a significant policy that triggered years of controversy.

The order stated that 27 per cent of vacancies in civil posts and services under the Government of India would be reserved for Socially and Educationally Backward Classes (SEBC), also referred to as backward castes. Previously, job reservations were only available for Scheduled Castes and Scheduled Tribes. This created a new category for reservations, making only persons from backward classes eligible for this quota.

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The Decision Makers

A decision of such magnitude was clearly not made by the Joint Secretary who signed the document; that official was merely carrying out instructions from the Minister of Personnel, Public Grievances and Pensions. Major decisions involve various key functionaries in the country:

• President: The head of state and highest formal authority.
• Prime Minister: The head of government, exercising actual governmental powers and making most decisions in Cabinet meetings.
• Parliament: Consisting of the President and two Houses (Lok Sabha and Rajya Sabha). The Prime Minister requires the support of the majority in the Lok Sabha.

The Office Memorandum of August 13, 1990, was the culmination of a series of events:

• The Second Backward Classes Commission, headed by B.P. Mandal (thus known as the Mandal Commission), was appointed in 1979 to identify socially and educationally backward classes and recommend measures for their advancement.
• The Commission submitted its report in 1980, recommending, among other things, 27 per cent reservation of government jobs for SEBCs.
• The report was debated in Parliament, and many demanded its implementation.
• In its 1989 Lok Sabha election manifesto, the Janata Dal promised to implement the Mandal Commission report if elected.
• The Janata Dal formed the government after winning the election, and V.P. Singh became Prime Minister.

Following the election, key developments led to the order:

• The President announced the government's intention to implement the report in his address to Parliament.
• On August 6, 1990, the Union Cabinet formally decided to implement the recommendations.
• The next day, Prime Minister V.P. Singh informed Parliament of the decision.
• The Cabinet's decision was sent to the Department of Personnel and Training. Senior officials drafted the order, received ministerial approval, and an officer signed it on August 13, 1990.

The decision became a highly debated issue, sparking widespread protests, counter-protests, and violence due to its impact on job opportunities. While some argued it was necessary to address historical inequalities and provide opportunities for underrepresented communities, others felt it was unfair, denying equal opportunity to those not from backward classes and potentially hindering national unity by perpetuating caste feelings.

The dispute arising from this order was ultimately resolved by the Supreme Court and the High Courts, which settle disputes involving government decisions. Numerous cases challenging the order were filed. The Supreme Court consolidated these as the 'Indira Sawhney and others Vs Union of India case'. After hearing arguments from both sides, eleven Supreme Court judges, by majority decision in 1992, declared the order valid but directed the government to modify it by excluding well-to-do persons from backward classes ('creamy layer') from benefiting from the reservation. The Department of Personnel and Training issued a modified order on September 8, 1993, bringing the dispute to a close, and the policy has been implemented since.

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Need For Political Institutions

The example of the Office Memorandum illustrates the complex process of government functioning, involving decision-making, implementation, and dispute resolution. Governing a country encompasses various responsibilities, such as ensuring security, providing education and healthcare, collecting taxes, and running welfare programs. This requires individuals to make decisions, others to carry them out, and a mechanism to resolve conflicts.

To ensure these tasks are handled effectively and consistently, even with changes in leadership, modern democracies establish specific structures called institutions. A democracy functions well when these institutions perform their assigned roles, which are defined by the country's constitution.

In the case of the reservations order, several institutions were involved:

• The Prime Minister and Cabinet made the important policy decision.
• The Civil Servants (in the Department of Personnel and Training) implemented the decision.
• The Supreme Court settled the dispute.

Other institutions, such as Parliament (discussing the report) and the President (announcing intention), also played a role. Working with institutions involves rules, regulations, meetings, and procedures, which can sometimes lead to delays and complications. While this might seem frustrating, these processes are crucial for allowing broader consultation and preventing hasty, potentially bad decisions. Democratic governments rely on institutions for this reason.

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Parliament

In the Office Memorandum example, although Parliament didn't issue the order directly, it played a significant role through discussions on the Mandal Commission report, influencing and pressuring the government. The government's decision was ultimately contingent on enjoying the support of Parliament.

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Why Do We Need A Parliament?

In all democracies, an assembly of elected representatives holds supreme political authority on behalf of the people. In India, this national assembly is called Parliament. At the state level, it's the Legislature or Legislative Assembly. These assemblies exercise political authority in several key ways:

1. Law Making: Parliament is the ultimate authority for creating laws (legislation). It can enact new laws, amend existing ones, or repeal them. This is why these bodies are often called legislatures.
2. Control over Government: Parliaments supervise those who run the government. In India, this control is direct; the government remains in power only as long as it retains Parliament's confidence.
3. Control over Finances: Parliaments control public funds. Government spending requires Parliament's approval.
4. Forum for Discussion: Parliament is the highest platform for discussing and debating public issues and national policy, and it can seek information on any matter.

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Two Houses Of Parliament

Most large democracies divide their Parliament into two parts or Houses to better manage its role and powers. Typically, one House is directly elected and holds more real power, while the second House is often indirectly elected and serves specific functions, such as representing the interests of states or regions.

India's Parliament comprises two Houses:

• The Council of States (Rajya Sabha)
• The House of the People (Lok Sabha)

The President of India is also considered a part of Parliament, and laws passed by both Houses require the President's assent to come into force.

While often referred to as 'Upper' (Rajya Sabha) and 'Lower' (Lok Sabha) Chambers, this terminology doesn't reflect their relative power according to the Indian Constitution. The Rajya Sabha has some special powers related to states, but the Lok Sabha generally holds supreme power on most matters:

1. Ordinary Laws: Both Houses must pass ordinary laws. In case of disagreement, a joint session is held. Due to its larger number of members, the Lok Sabha's view is likely to prevail.
2. Money Matters: The Lok Sabha has more power over finances. Once it passes the budget or a money bill, the Rajya Sabha cannot reject it. It can only delay it for up to 14 days or propose changes, which the Lok Sabha is not obligated to accept.
3. Control over Council of Ministers: Most importantly, the Lok Sabha controls the Council of Ministers. The Prime Minister must have the support of a majority in the Lok Sabha. If the Lok Sabha passes a 'no confidence' motion against the Council of Ministers, the entire ministry, including the Prime Minister, must resign. The Rajya Sabha does not have this power.

*(The description of a day in the life of the Lok Sabha on Dec 7, 2004, demonstrates various parliamentary functions: questioning ministers, discussing reports, introducing bills, debating policy issues, and passing laws, highlighting the Parliament's role as a forum for accountability, scrutiny, and legislation.)*

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Political Executive

The Office Memorandum example showed that the person signing the order was executing a decision made by someone else, ultimately reflecting the will of Parliament. In any government, functionaries at different levels make daily decisions without exercising supreme power. These functionaries collectively form the executive, responsible for 'executing' government policies. When we refer to 'the government', we often mean the executive.

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Political And Permanent Executive

In a democracy, the executive comprises two types:

• Political Executive: Elected by the people for a fixed period. This includes political leaders who make major decisions (e.g., ministers).
• Permanent Executive (Civil Services): Appointed on a long-term basis. These are civil servants who remain in office even when governments change. They work under the political executive, assisting in administration.

In the reservations case, the Cabinet (political executive) made the decision, and the officials in the Department (permanent executive) drafted and issued the order.

Why does the political executive (minister) hold more power than the permanent executive (civil servant), despite the latter often having more expertise? The reason is that in a democracy, the will of the people is supreme. The minister, as an elected representative, is empowered to exercise the people's will and is ultimately accountable to them. Ministers provide the overall direction and objectives for policy decisions, taking advice from experts on technical matters but making the final choice when different opinions or options exist. This mirrors how in large organisations, those with a broader vision determine goals, while experts advise on the means. Elected ministers fulfill this role in a democracy.

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Prime Minister And Council Of Ministers

The Prime Minister is the most significant political institution in India, although not directly elected by the people. The President appoints the Prime Minister, but must appoint the leader of the majority party or coalition in the Lok Sabha. If no single party has a clear majority, the President appoints the person most likely to gain majority support. The Prime Minister's tenure is not fixed; they remain in power as long as they lead the majority.

Other ministers are appointed by the President on the Prime Minister's advice, usually from the majority party/coalition and typically members of Parliament. Non-MPs can become ministers but must be elected within six months.

The official body of ministers is the Council of Ministers, typically comprising 60-80 ministers of different ranks:

• Cabinet Ministers: Top leaders in charge of major ministries, forming the inner circle (around 25 ministers) that meets to make decisions for the Council of Ministers.
• Ministers of State with independent charge: In charge of smaller ministries, attending Cabinet meetings only by special invitation.
• Ministers of State: Attached to and assist Cabinet Ministers.

Because regular meetings of all ministers are impractical, decisions are made in Cabinet meetings, leading to parliamentary democracy often being called the 'Cabinet form of government'. The Cabinet operates as a team, with all ministers collectively responsible for decisions and unable to publicly criticise them. Civil servants (secretaries) provide background information, and the Cabinet Secretariat assists in coordinating ministries.

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Powers Of The Prime Minister

The Constitution does not explicitly detail the Prime Minister's powers, but as head of government, the PM holds extensive authority:

• Chairs Cabinet meetings.
• Coordinates the work of ministries and resolves departmental disagreements.
• Supervises all ministries and leads the Council of Ministers.
• Distributes and reassigns work among ministers.
• Has the power to dismiss ministers.
• The resignation of the Prime Minister leads to the resignation of the entire ministry.

Within the powerful Cabinet, the Prime Minister is the most dominant figure. The PM's powers in parliamentary democracies have grown significantly, leading some to term it a 'Prime Ministerial form of government'. This trend is reinforced by the PM's control over the party, influence in Parliament, and media focus on top leaders. In India, Prime Ministers like Jawaharlal Nehru and Indira Gandhi wielded considerable power, influenced by their personalities and public standing.

However, the rise of coalition politics in recent years has limited the Prime Minister's power. Leading a coalition requires accommodating different factions within one's party and alliance partners, as well as considering the views of supporting parties, which are essential for the government's survival.

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The President

While the Prime Minister heads the government, the President is the head of the State. In India's political system, the President's powers are largely nominal or ceremonial, similar to the British monarch. The President's role is to oversee the harmonious functioning of political institutions to achieve state objectives.

The President is elected indirectly by elected Members of Parliament (MPs) and Members of Legislative Assemblies (MLAs), ensuring representation of the entire nation, but without a direct popular mandate like the PM. This reinforces the President's role as a nominal executive.

Constitutionally, the President appears to have extensive powers: all government activities, laws, major policy decisions, and appointments (Chief Justice, Supreme/High Court judges, Governors, Election Commissioners, ambassadors) are made in the President's name. The President is also the supreme commander of the armed forces.

However, these powers are exercised only on the advice of the Council of Ministers. While the President can ask the Council to reconsider advice, they are bound to accept reconsidered advice. Similarly, a bill passed by Parliament becomes law after the President's assent. The President can delay assent or send the bill back for reconsideration, but must sign it if Parliament passes it again.

The President's key independent power lies in appointing the Prime Minister. When a party or coalition has a clear majority, the President must appoint its leader. When no party has a clear majority, the President uses discretion to appoint the leader most likely to gain majority support, potentially asking for a confidence vote within a specified time.

*(Note: India follows the parliamentary system, where Parliament is supreme. This contrasts with the Presidential system (e.g., USA), where the President is both head of state and government, directly elected, appoints ministers independently, can veto legislation, and has a fixed tenure, not needing parliamentary support. The description of the President using 'she' acknowledges that India has had female Presidents, highlighting the need to avoid assuming positions are held solely by men.)*

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The Judiciary

The smooth resolution of the reservations dispute through the Supreme Court's verdict underscores the importance of the judiciary. An independent and powerful judiciary is vital for democracies.

The judiciary comprises all courts in a country. India has an integrated judiciary: the Supreme Court (national level), High Courts (state level), District Courts, and local courts. The Supreme Court oversees judicial administration and its decisions are binding on all other courts. It can hear disputes between citizens, citizens and government, state governments, and union/state governments. It is the highest court for appeals in civil and criminal cases.

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Independence Of The Judiciary

Judicial independence means the judiciary is not controlled by the legislature or executive; judges are not directed by the government or ruling party. Modern democracies consider this essential, and India has achieved it.

Supreme Court and High Court judges are appointed by the President based on the Prime Minister's advice and consultation with the Chief Justice. In practice, senior judges have significant influence in selecting new judges, limiting political executive interference. Removing a judge is extremely difficult, requiring an impeachment motion passed by a two-thirds majority in both Houses of Parliament – a process never successfully completed in Indian democratic history, ensuring job security and independence.

The Indian judiciary is among the world's most powerful. The Supreme Court and High Courts can interpret the Constitution and declare any law or executive action (union or state) invalid if it violates the Constitution. This power is called judicial review. The Supreme Court has also ruled that Parliament cannot alter the Constitution's basic principles.

The judiciary's powers and independence enable it to protect Fundamental Rights. Citizens can approach courts (including through Public Interest Litigation - PIL) to seek remedies for rights violations or to address matters of public interest harmed by government actions. Courts can intervene to prevent misuse of government power and check malpractice by officials. This strengthens public confidence in the judiciary.