The Delhi government has appointed 21 MLAs as parliamentary secretaries. Several other State governments have also taken this route in the past; earlier State governments in Delhi have also made such appointments, although fewer in number. This is part of a trend of weakening the power of legislative bodies by governments which has developed over the last three decades.
Most modern republics build in the concept of separation of powers in their Constitutions. The idea is that no particular organ of state should have a concentration of powers. Different institutions act as a check on the actions of others. In the simplest form, there are at least three parts: the executive arm that makes and executes policies, the legislative arm that makes laws and holds the executive to account, and the judicial arm that adjudicates disputes and ensures that the other two arms do not violate the provisions of the Constitution. In particular, Parliament and State legislatures have the important duty of monitoring the actions of the government and holding it to account. Our Supreme Court has recognised separation of powers as part of the basic structure of the Constitution, and can therefore strike down even amendments to the Constitution that infringe upon this principle.
Checks and balancesThe concept of office of profit finds place in Articles 102 and 191 of the Constitution, which state that an MP or MLA will be disqualified if he or she occupies such an office. The idea is that every legislator should be able to carry out legislative duties without any obligation to the government of the day. As Ministers have to be members of the legislature, they are exempt from this disqualification. The Constitution also recognises that there may be other cases where exceptions may be required and allows Parliament and State legislatures to make exemptions by passing a law. In several cases, courts have examined this issue and concluded that the key question is whether occupation of such office will make a legislator beholden to the executive. In general, a person is considered to hold an office of profit if four conditions are met: (a) he holds an office, (b) the office is one of profit, that is, it carries some benefits, (c) the office is under the control of the Central or the State government (d) the office is not that of a Minister or exempted by an Act of Parliament or State legislature.
The 91st amendment to the Constitution recognised the problem of the government trying to win over legislators by giving them ministerial berths. It limited the number of ministers, including the Chief Minister, to 15 per cent of the strength of the Lok Sabha or State Legislative Assemblies. For Delhi, Article 239AA of the Constitution limits the number to 10 per cent of the strength of the Legislative Assembly (which is seven persons). The question is whether by appointing 21 more MLAs as parliamentary secretaries — which will make 40 per cent of the membership have some type of an executive role — the nature of the Legislative Assembly is being changed. That is, whether such an Assembly will still be able to exercise its oversight role over the government. An argument has been made that these parliamentary secretaries will be able to aid the government in being more responsive to citizens’ needs. That argument, however, misses the point of separation of powers. The role of legislators is not to help the government do its job better, but to ensure that it functions in a proper manner. That is, the legislator exercises the role of a watchdog over the government on behalf of citizens and not as an agent of the government.
Disempowering the legislatureTwo other developments, the anti-defection law and MPLADS/MLALADS (local area development schemes), also weaken the separation of the legislative arm from the executive. The anti-defection law was enacted in 1985 through the 52nd amendment to the Constitution. This requires all legislators to abide by the party diktat on every vote in the legislature. Therefore, the legislator cannot exercise independent judgement on any issue if the party leadership has taken a position. Thirty years of experience shows us that this has led to concentration of power in party leaderships. For instance, one sees any government that is trying to build consensus — such as for the Goods and Services Tax legislation — negotiate with the leaderships of various parties, rather than convince individual MPs on the merits of the case. Also, the ruling party can require all its MPs to vote in support of a motion. These MPs have effectively lost their rights — and therefore cannot do their duty — of exercising their independent judgement on issues and performing the watchdog role.
In 1993, the Central government started MPLADS, through which legislators can earmark a certain amount of public funds for projects in their constituency. The concept has been adopted by many states as MLALADS. The argument was that elected MPs and MLAs know the needs of their electorate well and can be effective in allocation of resources. This again subverts the role of legislators. Their role is to allocate the entire Central and State budgets, and to monitor the spending. They are expected to use their knowledge of ground-level issues in this allocation, and see that the funds are spent properly. By providing each of them a specific amount to spend on projects, their oversight role is weakened.
The role of legislators is critical in a democracy. They are elected by citizens, and have the task of ensuring that the government is acting in the best interests of the public. In this, they are expected to exercise their independent judgements on what constitutes public and national interest. They act as a bulwark against autocratic actions of the executive. Therefore, it is imperative that their independence is protected. Actions that impinge on such independence, such as excessive appointments to executive positions, the anti-defection law and MPLADS, should be reversed. Otherwise, there is a risk of a slow erosion of the institution of legislatures, which could put at risk the very existence of our republic.
M.R. Madhavan is the President and co-founder of PRS Legislative Research.
