By VIVEK PATTANAYAK in Bhubaneswar, May 13, 2021: Power corrupts and absolute power corrupts absolutely. Lord Acton is credited with that profound statement. When the exercise of power is not in the hands of a benevolent ruler, history has also shown how power has been checked to become absolute.

Starting from Magna Carta when power of monarch was kept under restraint by the nobility, there are innumerable examples of restriction, devolution, separation, division and then decentralization of power occasioned by writings of eminent political philosophers, political movements, class struggles, insurrection, and revolutions whether successful, or unsuccessful.
After the American Revolution, victorious colonies shared power under the constitution dividing power between the federal authority and the States. Power was shared between the executive (President), legislature (Senate and House) and judiciary (Supreme Court). This sequestering of authority was prompted by the impact of the doctrine of separation of power propounded by Montesquieu.

In history of Britain with Civil War and Glorious Revolution we have seen how power moved from absolute monarchy to parliament and growth of cabinet form of government under the prime ministermade King or the Queen only a figure head. Power has also moved from the House of Lords, a body representing nobility to the House of Commons mostly from bourgeoise class.
In India constitutional development has taken place from1858 onwards with Government of India Acts progressively deconcentrating, transferring, and devolving power till the Indian Independence Act, and finally the constitution of India which has been influenced by models of Britain and America. Separation of power is embedded in the constitution. Power is also divided between Union and the States. Decentralization of power has been envisaged with creation of local self-governments like Zilla Parishad, Panchayat Samity and Grama Panchayat and Urban bodies by 73rd Amendment.

Classical understanding of separation of power covers institutions like executive legislature and judiciary, namely President (in reality the Council of Minsters with Prime Minister at the head),Parliament (also including President apart from Lok Sabha and Rajya Sabah) and Supreme Court.

In addition to these traditional institutions of power, other constitutional bodies like CAG, Election Commission, Union Public Service Commission etc. are expected to also exercise authority within their respective areas. For protection of SC and ST and Backward Class the Constitutional Commissions have been established under Articles 338, 338A, and 340. Even the statutory bodies have been created to protect human rights, interest of women, children, disabled people and to provide information to people etc.

Further, media having constitutional and legal guarantees and eminent public status has a distinct role to play as the Fourth Estate to provide necessary check on power.This is reflected in Article 361A and through innumerable judicial decisions of apex court delineating the scope of Right to Freedom of Speech under Article 19.

Civil society as a vibrant institution has taken roots in last two decades not only in the world but also in our country more prominently seen during the Anna Hazare movement. No concept of sovereignty, although an essential attribute of statehood, is absolute when the countries are under international obligations under the Charter of United Nations and plethora international conventions to which the countries are signatories placing mandate to respect human rights, women’s status, children’s rights, rights pf disabled people, and rights and concerns of minorities whether racial, ethnic, or religious. In India, the Constitution under Article 51 urges the State to respect international law.

The monistic theory of sovereignty has yielded place to concept of plurality of authority. Austin has been overtaken by Harold J Laski. Authority is now federal not unitary. The executive power is shared between political executive and bureaucracy. Coming to the political executive power it is with Prime Minister and his Council of Minister. Until forty fourth amendment done in 1979, there was grey area as to whether President was wholly obliged to accept the advice tendered by theCouncil of Ministers with Prime Minister as the head.

Even now President has power under the constitution of sending back decisions of the Council of Ministers under proviso to Article 74. The Prime Minister has some specific duties to inform President under Article 78. Even otherwise, as the Head of State like the British monarch, Ivor Jennings, the celebrated constitutional expert, had peremptorily asserted,“he has right to encourage, right to advise and right to warn”. Even on legislative matters he has power to return a bill under Article 111. Even making of law through ordinance, the President can delay and raise question.

Legislative control over executive is well laid out under the constitution. The Speaker of Lok Sabha and Vice President as holders of high constitutional position have conspicuous and significant status to conduct the proceedings of the legislative bodies where Prime Minister and his Council of Ministers is made answerable. Rulings of both in the Parliament can be effective check on Executive Government.

Adjournment motions, call attention motions, debates during budget session and no-confidence motion apart from the questionhour interpellations can be modes of making executive government accountable and responsible in addition to regular and effective functioning of the Parliamentary Committees. Discussion on reports of the Union Public Service Commission and other constitutional Commissions, Public Accounts Committee and Estimates Committee and COPU etc. are other areas where the executive can be made accountable and answerable.

Political executive like Prime Minister is subject to advice and views of Cabinet colleagues. Political party in power can make the Prime Minister accountable even if the party by itself has absolute majority in the Lok Sabha. In coalition of parties forming government there are in-built check and balance. A consensus is necessary on policy matters affecting national interest. When the central government is dependent upon regional parties in the Lok Sabha and Rajya Sabha federalism is not only well protected, but it becomes amazingly effective instrument of division of power. The centre in such a situation must be circumspective in exercise of its will when the interest of States is involved. It cannot be unilateral in decision making.

Political executive cannot work on its own unless assisted by civil service, sometimes in political parlance, pejoratively referred to as bureaucracy. One would hasten to add at this stage that this historical institution, more than century and half old,a gift of the British administration has a constitutional status under Chapter I of Part XVI the Indian constitution. Civil servants, well protected under law and constitution, enjoy wide range of statutory powers and some being quasi-judicial in nature.

Under Article 77 transaction of business rules are framed. The secretariat instructions emerge out of them. Giving free and frank advice without fear and favour howeverunpalatable or unpopular they may beare expected from civil servants who are obliged to be politically neutral. Right of resubmission by the Secretary is an effective instrument to remind political executive about propriety or otherwise of his decision.

What holds good at the Centre in matters relating to check and balance also holds good in equal measure at the State level with existence of different constitutional apparatus and statutory institutions in addition to media and civil society. In addition, the State is under the watchful eye of the Governor, appointed by the President, and constantly under Sword of Damocles of Article 356.

Theory of judicial review and concept of basic structure have given enough authority to the judiciary to keep the legislature under control. Article 32, itself a fundamental right gives jurisdiction to Apex Court to enforce fundamental rights by issue of writs and Article 226 gives similar authority to the High Court not only to protect fundamental rights but also issue writs for any other purpose.

Power of judiciary is also subject to constitution and law. Bar and bench constitute the judiciary. Bar can caution the bench when it goes beyond its jurisdiction. Judges can be impeached in Parliament. Media can criticize the judicial decisions unless it attracts the Contempt of Court Act.

Print media is also subject to the Press Council and electronic media is also subject to code of conduct.

Legislature to which political executive is collectively responsible is itself also subject to will of the people periodically reflected through elections.

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