Updated: Jul 31, 2020
‘You cannot escape the responsibility of tomorrow by evading it today.’ – Abraham Lincoln
Under the Indian Constitution, the working of an executive is crucial, significant,, and yet very powerful. During the days of COVID 19, it is the executive, which enjoys maximum powers with minimum responsibilities. Although, the Constitution does not envisages ‘minimum responsibilities’. However, when the current situation is out of control; the executive mechanism usurps the power and authority to control 1.30 billion people with a stroke of a pen. No doubt, we have a parliamentary form of government and head at the Centre is the Prime Minister. Jennings describes in his ‘The Office of Prime Minister’ – him as the ‘keystone of the Constitution’. In the present crisis, he is the source of power and each executive sees him and learns through his style that how to administer his own department, section or to rule on people by putting a punitive lockdown (Though, unlock-1 is just begun). Of course, this is for the safety of the public at large in our Social-welfare State. However, a certain methodology of lockdown is questionable.
Apart from Prime Minister, there is also a council of ministers under the Constitution, who composes the government. They work for people, society, and the entire nation. They are having power, influence, and authority to act. They are accountable to Parliament and in turn to people of India. They cannot be an autocrat or act like a monarch. They are in power because they have won the confidence of the people. In recent times, however, it proved a testing time for them. Experts of the Constitutional Law know that Parliamentary form of government runs on the principle of collective responsibility, which represents ministerial accountability, as per the view narrated in the 7th Edition of the Constitutional Law by M P Jain. Article-75(3) of the Constitution states that: ‘The Council of Ministers shall be collectively responsible to the House of People.’ (Lok Sabha) This principle of collective responsibility is the very basis of the working of the parliamentary form of government. At present, when the various affairs of the Government – Executive are at stake, we hardly find any whisper about the collective responsibility. Though, we have Labour, Home, Railway, Finance, etc. Ministers, but we do not see their individual impact except few, much less any collective responsibility as enshrined in the abovementioned article.
Constitution is our strength. Constitutional law gives us the spirit to stand by the strength. However, sudden commands issued by the executive for the people – to regulate their conduct, to curtail freedom, and to shut their doors at once are quite absurd and suffering from autocratic bias. We do not see that each Minister has been taken into confidence for such (present) cabinet decisions, though, no Minister has expressed any dissent, but people have not seen any deliberations on any of the issues (apart from few meetings shown on Television), which directly and severely affect the entire population of the country. Policies of the Government during this long lockdown period are abrupt, scattered,, and dubious. Due to lack of healthy discussions at any point in time either in the Parliament or outside, people are unable to see any viewpoints or differences within the Cabinet, as all roads in the present Government lead to the Prime Minister only.
Even the opposition has shown very little courage to display any objections on vital differences in open and also on the matters of fundamental policies in question. It appears that the present Cabinet is not working as an effective decision-making body, but merely obliging the head of the Council of Ministers by ratifying everything. Hence, the situation is emerging in our country that the entire concept of collective responsibility is almost on the verge of dilution. Generally, the responsibility comes from rights. Executive under the Constitution is exercising its powers through such authority, but without any kind of legal obligation to follow the Constitutional spirit. The clear reason is the centralization of power. Our Constitution pitches for the federalism, distribution of powers between States and Centre, and also envisages decentralization of local and State Government bodies. However, the real picture is otherwise. We are heading towards powerful anarchy with the tool of mobocracy – newly born from the democratic monarchy. Any decision of the Government entails collective responsibility. Whole Cabinet is accountable for its decisions. They are answerable to Parliament. Our hue and cry in the time of Pandemics is utterly failed. We have been ruled and re-ruled by each kind of authority, bureaucracy, and/or police. But, hardly anyone has challenged the powers of executive qua lockdown or extensions of lockdown one after another. Earlier executive action and discretion exercised by it used to come under the judicial scrutiny of the Supreme Court and in some cases, it had exercised the powers of judicial review over the action or discretion of executive and held them illegal, arbitrary and atrocious (Common Cause, A Registered Society Vs. Union of India – 1996 (6) SCC 530).
Besides, in Shiv Sagar Tiwari vs. Union of India -1996(6) SCC 558, the Supreme Court had started with … ‘Edmund Burke stated as early as 1777: "Among a people generally corrupt, liberty cannot long exist." In 1778, he observed: "An arbitrary system indeed must always be a corrupt one. There never was a man who thought he had no law but his own will, who did not soon find that he had no end but his own profit."
2. According to Francis Beanmount (1584-1616) corruption is a tree, whose branches are of an immeasurable length, they spread everywhere, and the dew that drops from thence, hath infected some chairs and stools of authority.
3. In the Encyclopedia of Democracy by Seymour Martin Lipset, Vol.1, page 310, in the Chapter "Corruption", it is stated that corruption is an abuse of public resources for private gain. It is known that bribes open the way for access to the State for those who are willing to pay and can afford to pay. The situation leaves non-corrupt citizen with the belief that one counts only if one has the right person contact with those who hold power and also allow persons with money power to get things done to their advantage through back door.’
We are forgetting the aforesaid words. Collective responsibility is the robust constitutional convention in our Parliamentary system and to sustain healthy democratic values, it is required to be opened up. In the 1st Volume of Rostrun Law Review, Issue-II, it is stated that: ‘The collective responsibility under Article 75 of the Constitution of India has two meanings: (i) All members of a Government are unanimous in support of its policies (ii) The ministers, who had an opportunity to speak for or against the policies in the cabinet are thereby personally and morally responsible for its success and failure.’(Authored by Romit Raja Srivastava, Symbiosis Law School, Noida)
However, it appears that this has disregarded in this testing time due to the deterioration of constitutional values and morality at par. Former President of USA Ronald Reagan once said: ‘The Government is like a baby’s alimentary canal, with a happy appetite at one end and no responsibility at the other.’ Time has come that we not only need Constitutional Morality, but the Constitutional Integrity and Honesty for the rules of Governance. The plan of executive to ambush the people is simply threatening rather than caring. Hence, the Constitutional Courts shall immediately open widest protective umbrella for ‘we the people of India’.
- Kashyap Joshi
[Advocate practicing at the High Court of Gujarat and Visiting Faculty at the Institute of Law, Nirma University, Ahmedabad] SEE LINKEDIN ACCOUNT OF THE AUTHOR