bUe and Abuse of the Indian ConstitutionnD - Zeitschrift fÃƒÂ¼r ...

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818 RaoOver the years, in pursuit of a welfare state, the role of the Executive has beenlater on.extended to practically every socio-economic activity, which in turn led to a greatvolume of legislation giving unprecedented power to the Executive. The higher judiciaryhas evolved principles of administrative law to restrain the Executive fromexercising its powers in an arbitrary and mala fide manner. One sees a wideninggap between what the courts proclaim in this regard and the actions of the Executive.Consequently, Government happens to be the major litigant before thecourts. A lot of well-meaning actions are set aside, since Government fails to adhereto the principles of administrative law. judges at the highest level have alsoobserved that civil servants have been buck-passing and are disinclined to take decisionslest they be blamed if the decision proved to be wrongCivil servants often complain of more unwarranted interference by the politicalexecutive at the State level than at the Central level, with the result that officers ondeputation from the State Government to the Central Government are generallyreluctant to go back to the State Government. Not infrequently, State Governmentsuse transfers as aweapon to victimise officers.With all its problems, the civil service in India is still a strong factor in sustainingthe government at all levels. Though it developed and maintained license-per-in its hands, -itmit Raj for over forty years and thus acquired enormous powersresponded well to the political call for dismantling this Raj to suit market-orientedeconomic reforms. The All India Services provide an effective and valuable linkbetween the Union and the State Governments.The civil service, especially its senior officers, is in need of adequate in-serviceexposure to general principles of administrative law and of constitutional law andspecialisation in such areas as intellectual property rights, information technology,trade, commerce and finance, agriculture and environment, if it has to remain responsiveto the requirements of modern India.F. Execution of lawsThe Constitution does not create administrative agencies of the Union for theexecution of itsin the Union List in the Sev-laws. Only a few subjects specifiedenth Schedule to the Constitution are administered by the Union directly throughown agencies.58 Administration of several matters in the Union List as alsoitsmost matters in the Concurrent List and enforcement of Union laws relating tothem are entrusted to the executive machinery of the State.59 The Constitutionmakers.considered that this arrangement is more economical and effective than theone obtaining in some federations in which the Union and States have separateagencies for administration of their respective laws. The Constitution expressly58E.g., Defence, Foreign Affairs, Foreign Exchange, Posts and Telegraphs, All India Radio andTelevision, Airways, Railways, Currency, Customs, Union Excise, Income-tax. For a discussion onthis aspect, see Report of Sarkaria Commission on-Central-State Relations, Part 1, 97 110.59 See articles 73 and 163 on the extent of executive powerof the Union and of the States, respectively.See also article 258 on power of the Union to confer powers, etc.,on States in certain cases.http://www.zaoerv.de© 1998, Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht
Use and Abuse of the Indian Constitution 819obligates the States to secure compliance with the laws made by Parliament andalso empowered to give necessary directions to a State forthe Union Executive isthat purpose.60 Whatever be the constitutional arrangements in this regard, itwell-known that one of the weak points of the Indian constitutional system relatesto.the enforcement of enacted law.After independence, there has been a virtual explosionisin the field of enacteddeals with socio-economic matters aimed at im-law; perhaps, India has a greater number of laws than any other countryworld. A whole lot of legislationproving the lot of the common man. The State machineryin thewhich is to enforce thelaw remains very ineffective. The State Governments often accuse the CentralGovernment of not providing adequate financial resources for enlarging andstrengthening the enforcement machinery. This charge is not admitted by the CentralGovernment as it argues that division of financial resources takes place as perthe constitutional scheme. Enforcement of law mainly depends upon complaintsby affected persons; however, most laws remain unknown to the persons forwhose benefit they are enacted. A significant part of the enforcement machineryis seen as making money for personal gain either for enforcing or not enforcingthe law. It is often alleged that the political executive too restrains the enforcementmachinery from proceeding against the offenders. In any view of the matter, thereis a crying need for reducing drastically the number of laws and the involvementof the Government in all and sundry matters.G. Abuse of discretionary powersNo Government can function without discretionary powers.61 It is in this areathat abuse has occurred in a significant manner. This may be illustrated by themanner in which President's Rule has been imposed in States under article 356 ofthe Constitution, Governors of States are selected, contracts are awarded, thestatus of Scheduled Castes, Scheduled Tribes and other backward class is conferredon newer sections of population, especially on the eve of elections, Ordinancesare promulgated, public sector undertakings are managed, etc. The publicappears to be deeply cynical about the Executive, whether it be civil or political.It is significant that there arevery few social action groups to mobilise publicopinion against abuse of executive power and in favour of obliging the public authoritiesto comply with the enacted law and discharge their duties. There is virtuallyno public resistance to wrongful deeds of government functionaries. A governmentproposal to establish a high level statutory body, to be known as the LokPal, to deal with corruption charges against all those who hold public office, includingthe Prime Minister, is under consideration.60 See article 256.61 On abuse of discretionary powers, see, generally, Ramana v. International Airport Authority ofIndia, AIR 1979 SC 1628; Common Cause, A Registered Society v.3538.Union of India, AIR 1996 SChttp://www.zaoerv.de© 1998, Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht
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