Transgressions by Elected Representatives

While we are consumed with debate on alleged assumption of executive role by the judiciary, the real issue that needs to be addressed is the assumption of executive role by the legislature. At a felicitation function for Dr Karan Singh about six months ago, Vice President Jagdeep Dhankar had raised this issue, though the import of VP’s remarks largely went unnoticed. He had said, “exercise of executive authority by either judiciary or legislature is not in consonance with democracy, as also constitutional prescriptions."

The blurring of lines between the executive and the legislature is not a recent phenomenon. In fact, the MP or MLA local area development fund was created by the Parliament and different State assemblies solely to address the unrealistic expectations the electorate started having from their MPs, and particularly their MLAs.

With the privatization of TV news media, such expectations have only increased with time. News channels are guilty of fueling unrealistic and misleading expectations amongst voters. If you are hooked to TV news, you would not miss, during every election season, anchors on the ground seeking views of the public on developmental work undertaken by the ‘elected representative’, creating an illusion that elected representatives have a role in delivering development works, law and order, etc.

The misguided TRP-driven programs and news reports have led to a situation where even voters consider influence peddling by their MLA (and to a lesser extent the MP) as a fait accompli. There is a general expectation amongst the voters that the MLA they elect will control the local administration including the police, ensure development works in the constituency, create jobs and will also help them secure favors at the State level, be it access to hospital beds, or transfer of kith and kin employed in government service closer to home, to name a few. In fact, a candidate who appears to be someone who will have a greater say with the executive often finds favor with the electorate. However, such an expectation of exercise of influence by elected representatives over the executive is a serious issue.

Since elected representatives are under greater pressure to be seen as delivering on the unrealistic promises made during elections, alarmingly, MLAs and MPs are now being co-opted by governments in the administration of their constituencies by way of district level committees or consultative bodies, thereby putting the local executive under greater pressure to accede to interference in discharge of their functions by the legislature. We are increasingly observing a trend in all governments of giving their MLAs a tacit say over the administration of their respective constituencies. MLAs now almost act like CEOs of their constituencies. This is nothing but a discharge of executive functions by the legislature that VP had alluded to as not being in consonance with constitutional prescriptions.

It is important to discuss the limitations to the role of elected representatives such as MLAs and MPs under the constitutional scheme, and the risks associated with granting greater say in the administration to the elected representatives.

Under the Constitutional scheme, an MP or MLA is elected by vote to form or bring down governments, to legislate, and to raise issues that need debate or attention of the house and the government. Outside of the aforesaid functions, the Constitution does not envisage any role for an elected representative, save as a minister. Even as a minister, she is the executive head of the ministry and has an obligation to ensure that the ministry works for the whole State in an impartial manner. Yet, it is not uncommon for ministers to claim how their constituency had garnered greater benefits and developmental projects during their tenure as a minister.

Interference by an elected representative in the discharge of functions by the executive is a violation of the oath administered to the elected representative under the Third Schedule of the Constitution. Similarly, if a minister has acted in a partial manner towards the constituency she represents, it is a violation of the solemn oath administered to the minister to act in a fair and just manner, without fear or favor, in accordance with the Constitution.

Though it is natural for public to applaud overt interventions by their MLAs in solving their day-to-day problems, including garbage, sewage, streetlights, roads and law and order, such an assumption of executive powers by the elected representatives is at the root of many problems that common citizens, industries and businesses suffer on a day-to-day basis across the country. From experiences at the police stations if a crime has to be reported, to the quality or pace of investigation, to local administration doing or not doing something, is often, if not always, guided by the influence exerted by the elected representatives or their workers. A local administration that is subservient to an elected representative will seldom act in a just and fair manner if the elected representative has indicated otherwise, unless forced by circumstances such as public outcry or media attention. Elected representative are guided by what is beneficial for their survival, that is, votes. They have to keep their workers, and those who approach their workers, pleased.

The reason for increasing use of money and muscle power in elections is because of the extra constitutional powers being exercised by elected representatives, and the perks that come with unchecked power without accountability. It is no secret that unskilled manpower supply, access to local resources, and the sale of scrap or waste in many manufacturing clusters across the country are generally controlled by firms floated by political workers. Manufacturers who invest have to find ways to work with elected representatives or their workers, often at the cost of better salary or incentives for the labor force. Manufacturers must ignore non-compliances by firms they are compelled to work with, increasing their own risk, for instance, as the principal employer. Manufacturing units also must suffer a lack of independent business decisions at the plant level to survive or avoid trouble, warranted or unwarranted, from the administration that often acts at the whims and fancies of the elected representatives.

Rule of law is sine quo non for attracting investments, including in manufacturing. If the local administration will not act fairly or in accordance with law, it represents a huge challenge to doing business.

The main reason for public outrage in the R G Kar case, or for that matter, the Pune Porsche case, was due to the perceived interference by elected representatives in the administration of justice. However, while taking up these specific cases, neither the judiciary, nor the media has attempted to address the all-pervading nature of the malice that is at the heart of such incidences.

It is not democracy, but the blurring of lines between the role of elected representatives and the executive that is impeding India’s progress in a significant way, and unless it is addressed, the governments’ desire for growth and prosperity for all can easily turn into chaos.

No political party can be expected to state that the role of MLAs and MPs is limited to forming governments, debating and passing laws and being the voice of their constituencies in assemblies and the parliament, respectively. It would be a political suicide for a party or its candidate if they were to clarify that the candidate is contesting elections only to legislate and be the voice of the constituency in the house and no more. Similarly, one cannot expect political parties or their candidates to clarify that the role of a minister is limited to the exercise of powers in accordance with law in respect of the ministry or the department entrusted to her, and no more, except perhaps participating in cabinet decisions if the minister is of that rank.

The question then arises as to who can bell the cat? It must be the Election Commission of India (EC). It is for the EC to clarify to the electorate why we are electing a representative, and what his role is, and is not. Neither any amendment to the law, nor additional budgetary support is required to enable the EC to take up this campaign. EC spends huge sums on TV ads, newspapers, FM and other media to motivate more people to vote. Such campaigns can add messages on the role of MLAs and MPs and what the electorate should not expect from them.

Besides the above, higher judiciary will also have to step in to stem the rot. Elected representatives ought to be bound by the oath to act in accordance with the Constitution. Jurisprudence on binding nature of oath, and consequences of breach thereof, ought to evolve. Transgression by the legislature in the affairs of the executive is not in conformity with the constitutional scheme, and breach of oath should lead to disqualification.

About the author: Krishna Vijay Singh is a Senior Partner and Head, Kochhar & Co. Gurgaon office.

Disclaimer: The opinions expressed in this article are those of the authors. The opinions presented do not necessarily reflect the views of Bar & Bench.

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