India’s perverted parliamentarianism today imposes no checks on the powers of the prime minister.

[By Bhanu Dhamija]

Many Indians have the erroneous impression that US president has unlimited powers while the Indian prime minister works under checks and balances. The reality is just the opposite. America’s president must deal with a truly independent legislature and 50 state governments, federal and state judiciaries, and a slew of constitutional limits on his power. Our country’s system, on the other hand, grants the prime minister such broad discretions that he or she can rule like a monarch.

No American president in that country’s 230-year history has been able to act autocratically. We have seen how Donald Trump’s overreaches have been blocked by the US system of government. Trump’s ban in immigration from some Muslim countries was denied until he removed religion as its basis, which the US Constitution prohibits. His policy to separate children from their undocumented parents is still being litigated in the courts. His attempt to build a wall on the Mexican border was curtailed because the legislature refused to fund it.

Trump’s signature program, the repeal of the Obamacare healthcare initiative, was defeated by a single vote of a senator from his own party, John McCain.

Trump has been able to take some unilateral actions, like withdrawing from the Iran nuclear deal and the Paris Climate Accord. But this is only because they were pacts made by his predecessor without the Senate’s approval, a constitutional requirement.

Shift in balance

In contrast, India has seen several prime ministers run roughshod over our entire system. The most brazen example, of course, is Indira Gandhi’s Emergency. By amassing powers and amending the Constitution, she made every government institution – including the office of the president –subservient to her. “The shift in the balance of powers within the new Constitution made it all but unrecognizable,” wrote Granville Austin, the chronicler of India’s Constitution.

Indira Gandhi wasn’t the first or last prime minister to amass autocratic powers. Jawaharlal Nehru refused to grant the president any discretionary powers, despite President Rajendra Prasad’s repeated requests. An Instrument of Instructions specifying the president’s powers, promised in the Constituent Assembly, was never produced. Nehru’s use of President’s Rule in Punjab in 1951 set a precedent for the prime minister to control state governments.

Today, Prime Minister Narendra Modi is following the same traditions, albeit with more stealth. He has appointed a pliant president and Bharatiya Janata Party loyalists as governors in all but four states. His control over parliament, the cabinet, and various other institutions – the Election Commission, the Comptroller and Auditor General, Information Commission, the Finance Commission and others – make a US President appear feeble in comparison.

Given such evidence that the Indian system enables autocrats, this observer is perplexed to see important thinkers still believing that a US president has more powers than an Indian prime minister. In the recent article in the Indian Express titled “Scepter and Crown, Must Tumble Down’, former finance minister P Chidambaram wrote, “The powers of a Prime Minister and the powers of a President are like chalk and cheese, but the differences are becoming blurred… by amending the Constitution, as in Sri Lanka, or vastly empowering the Prime Minister’s Office, as in India.”

Chidambaram bases this on a misunderstanding of the American president’s powers. “A US President is enormously powerful,” he wrote, having “the power to borrow, the power to spend, the power to enter into or withdraw from international treaties, the power to appoint justices and the power to wage war”.

The US constitution expressly grants these powers to the legislature, not to the president. A president cannot borrow or spend without legislative sanction; he nominates judges but they must be approved by the Senate, and he cannot declare war. The War Powers Act requires a president to notify US Congress within 48 hours of committing forces, and requires him to seek approval within 60 days.

Mere rubber stamps

Even more worrisome, though, is how Chidambaram believes an Indian prime minister is restrained. “A Prime Minister in a true parliamentary system is hedged by his Cabinet and shares executive power with key Cabinet ministers,” he wrote. “He is, under law, accountable every day to Parliament or parliamentary committees and every expenditure must be approved by Parliament.”

What good are these checks when the prime minister, under the basic rules of the parliamentary system, appoints every member of his Cabinet and is guaranteed a majority in parliament? Our system makes the cabinet a coterie and the legislature a rubber stamp.

Indian thinkers seem to believe that our country still follows the parliamentary system’s theoretical model. But even its mother system in England stopped following those parliamentary tenets years ago. As legal expert Sir Ivor Jennings wrote in 1941, “The theory is that the House controls the Government… The truth is, though, that a member of the Government’s majority does not want to defeat the Government.”

British journalist Walter Bagehot wrote of his nation’s system in the late 1800s: “An observer who looks at the living reality will wonder at the contrast to the paper description.”

The truth is India’s perverted parliamentarianism today imposes no reins at all on the powers of the prime minister. Our founders’ attempt to have an “elected monarch” in a president who could act as a check on the prime minister has failed. And so has the legislative check, due largely to anti-defection laws which make MPs mere bondsmen to party bosses. As the nation sees, and as Chidambaram himself laments, we have “hollowed-out institutions… legally mandated consultations with the Opposition reduced to a charade… denial of funds to states/provinces… and overriding of laws in the national parliament”.

There is no denying that the parliamentary model is basically flawed. It was rejected in 1787 by America’s founders because it is inherently unitary. It makes the Centre too strong, and by fusing executive and legislative functions it makes the prime minister too powerful. So America invented a directly elected chief executive. In the words of one of their founders, Gouverneur Morris, “This Magistrate is not the King… the people are the King.”

It is time that we Indians awoke to the realities of our flawed parliamentary government, and reconsider the US presidential system as viable alternative.

[A version of this article was first published on Scroll.in on 26 November 2020.]

[The author is Founder and CEO of the Divya Himachal group and author of ‘Why India Needs the Presidential System’. He can be reached @BhanuDhamija]