Wednesday, October 05, 2005

The role of the Judiciary in India's constitutional democracy - an old issue revisited

Today's Indian Express carries a thoughtful Op-ed piece by Bimal Jalan on the continuing controversy about the proper roles of the judiciary and the legislature in our constitutional democracy. Jalan carries forward a tradition of prominent Indian economists who have gone on to careers in government, and is currently a nominated Rajya Sabha MP. (His website provides further details about his career and also contains some of his speeches).

In commenting upon one of the classic issues of constitutional theory, Jalan notes that India' s recent political history adds a new flavour to the dilemma:

"In taking a view on relative powers, it is also necessary to consider certain important changes that have taken place in India'’s political landscape in the past 15 years or so. First, in the Centre as well as in several states, a coalition of parties constitutes a majority and forms the government. However, many of the parties in coalition are bitterly opposed to each other in some states (or at the Centre) where they are not parts of the ruling coalition. Secondly, since 1989, the average tenure of the government in power at the Centre has been relatively short. There have been as many as six general elections and seven governments (not counting the present government).

An important consequence of indecisive electoral verdicts and short tenures has been that ideology and programmes have now become largely inconsequential. Any party is willing to combine with any other party for possible political or electoral gain. Most parties now have one or two leaders who decide on [the] party'’s choice of candidates. The leader also decides whether to join a coalition and who would represent the party in government. Coalitions, leaders and ministers may come and go, but when in power, nothing prevents them from imposing their will on Parliament, revers[ing] policy decisions taken only a few months ago, and pass[ing] any law, or even the budget, by a voice vote without discussion.

Against this perspective, can there by any doubt that, on balance, the country is better off with the judiciary as an additional checkpoint on legality of actions taken by the legislature and the executive?"

As legal scholars continue their debate over issues of constitutional theory, it is important to bear in mind such considerations of pragmatism and realpolitik. In Jalan's case, it is clear that his long years amidst the tumble of Indian politics have added a rich layer of pragmatism to his analysis of contemporary events.

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