Delay in selecting ministers: good or bad?

This editorial in the Telegraph laments the fact that the formation of the council of ministers took twelve days:

This inordinate delay in forming a team that is supposed to present to the nation an effective government creates a very sorry spectacle of the prime minister and the Congress president. The delay can only be read as evidence of the lack of clarity in decision-making.

I think the delay has been good for politics, and should be institutionalised. No one can argue that but for DMK tantrums, we would have had a council of ministers in place in 24 hours. The delay was hardly by deliberate design. But having been forced to stagger cabinet formation, albeit willy-nilly, the results are largely positive. These 12 days generated intense democratic debate on the merit of the individuals in contention, including on this blog. Until the election, everyone is too busy predicting who will win, and the shape of the next government is almost never discussed. Then we have the results and the cabinet the next day. There is no democratic opinion to inform the Prime Minister in his exercise of the prerogative. This time was different. The intense media focus on non-performers must at least in part be the reason why Arjun Singh, Shivraj Patil and HR Bhardwaj did not make it.

The US system gives the President-elect over two months to form their team, and every candidate is intensely scrutinised by the President as well as the media. We did well this time. The process of a staggered swearing in, with only the PM (and if we must, perhaps a few key and relatively uncontroversial Ministers) should be sworn in the day after the results, while the rest of the Cabinet must wait a while.

[If my hypothesis that democratic debate had some impact on the shape of the cabinet is true, then lawyers seem to be popular with newspaper columnists. Nearly half of the new ministers seem to have law degrees.]

Update: Dear Suresh, thanks very much for helpful comments. The title has been suitably amended. Here are my responses to your worries:

1. I agree that unlike in the US, we don't have a system of direct legislative confirmation of ministers. The problem at hand is one of democratic control over exercise of (a fairly important) executive power. Sure, legislatures in some countries are mandated to exercise this control. But even there, they do not do so exclusively. Civil society and media perform the same task, only differently. In fact, absence of direct legislative supervision in India only strengthens my argument that at least media and civil society must have an opportunity to comment and criticise the candidates. This is certainly not an argument against also considering legislative controls (although pragmatic concerns around constitutional amendment may make it less feasible).

2. By institutionalisation, I only meant institutionalisation as a constitutional convention. Here is a good precedent being set (although the criterion of the mental state of being obliged to follow it is not satisfied in the current case), and has some good reasons in its favour. Future PMs must take it seriously, and in the process, lay the foundations of a convention. In circumstances like 1991, the convention will be flexible enough to accomodate exceptional urgency. But as a rule, I think it is healthy for a democracy to allow civil society a week or so to debate the shape of the council of ministers. And if that reduces the possibility of incompetent ministers (for, unlike legislative confirmation hearings, civil society/media criticisms cannot be determinative), the extra week spent will pay itself many times over in the next five years.

3. Yes, this will help only with a strong civil society. But as you yourself note, we are getting there. But at least the conditions must exist - swearing-in of the council of ministers within 24 hours of the elections presents the nation with a fait accompli.

4. The possibility of pressure and bargaining by allies cannot be discounted. But on that question, delay can cut both ways. As the current example shows, the PM used delay to make the DMK blink first. It was the opposite convention (of immediate swearing-in of the entire council) which mounted the pressure.

What I suggest will not be a panacea, but just a small step towards greater democratic accountability. That's all.

Update 2: Veerappa Moily is the new Minister for Law and Justice. One can expect some of the proposals made by the Second Administrative Reforms Commission, chaired by him, to translate into practice.

Unenforced legislations - reconsidering AK Roy

In a recent post on a related matter, I mentioned the judgment in AK Roy:

'In AK Roy v Union of India the duly enacted 44th Constitution Amendment Act 1978 provided that it shall come into force when notified. The government notified all but Section 3 of the Amending Act which sought to amend Article 22 of the Constitution dealing with preventive detention. The Supreme Court held that it could not issue a mandamus asking the government to notify it and bring it into force. If this is true of a constitutional amendment, it is definitely true of a mere legislation.Many other duly enacted laws which had similar provisions granting discretion of notification to the Executive have not been brought into force, including the Hire Purchase Act, 1972 (which I think continues to be on the statute books as valid but unenforceable law) and the Freedom of Information Act 2002 (which was repealed by the Right to Information Act 2005). This article documents several others suffering a similar fate.'

It is very interesting to compare AK Roy and several subsequent cases which have taken the same route with a British case decided by the far less 'activist' House of Lords:

In Secretary of State for the Home Department, ex parte Fire Brigades Union (1995) 2 AC 513 (HL) the House of Lords held that it was unlawful for the Home Secretary to introduce changes to a scheme which were incompatible with an Act of Parliament. Parliament enacted a provision for compensating victims of crimes, with a clause empowering the Secretary of State to bring it into force. The Secretary not only did not bring it into force, but also issued an order instituting a less generous scheme. The majority held that although it was within the Secretary's discretion to decide when it was appropriate to bring the law into force, he was under an obligation to keep the matter under continuing review. The institution of the less generous scheme was a failure of this duty since it was clear that the Secretary did not intend to bring the law into force at all, and thereby frustrated Parliament's will.

The doctrine of reasonable expectations also played a role. To quote Lord Brone-Wilkinson:

"Although the victim of a crime committed immediately before theWhite Paper was published had no legal right to receive compensation inaccordance with the old scheme, he certainly had a legitimate expectation thathe would do so. Moreover, he had a legitimate expectation that, unless therewere proper reasons for further delay in bringing sections 108 to 117 of theAct into force, his expectations would be converted into a statutory right. Ifthose legitimate expectations were defeated by the composite decision of theSecretary of State to discontinue the old scheme and not to bring the statutoryscheme into force and those decisions were unlawfully taken, he has locusstandi in proceedings for judicial review to complain of such illegality."

Interestingly, both the majority and the minority employed separation of power arguments. The majority held that it was for the Parliament to repeal a law, not the Executive. The minority reminded the Court of its own limitations.

The majority opionion makes sense. There are several instances where it is quite clear that the Executive has decided never to implement a law, like the constitutional amendment in AK Roy. It has thereby frustrated Parliamentary mandate - surely the discretion to bring into force does not include the choice of never bringing it into force. It is easy to say that those aggreived should go back to the Parliament - but Parliamentary time is a valuable resource. In any case, the Parliament has expressed an intention and has not said anything to the contrary - shouldn't it generate some obligations on the Executive? In fact, if it is unhappy with a law, shouldn't it be the government's responsibility to go back to Parliament to get it repealed (like it did in the case of the Freedom of Information Act 2002) rather than it frustrating the legitimate expectations of the citizen as well as the will of the Parliament?

Even international law (I think) has comparable rules, where a country which has signed a treaty but not ratified it is nonetheless has the obligation to refrain from any action contrary to the spirit of the treaty.

Perhaps the courts cannot issue mandamus to bring the law into force. But surely there is a middle way, like in Fire Brigades Union? The challenge of coming up with appropriate remedies should not result in the denial of the right itself. In some cases, even a mere judicial declaration of the continuing obligation on the Executive to consider the date of implementation and seeking evidence to demonstrate the fulfilment of this duty might suffice.

Update:
This article discusses a related issue of bringing different provisions into force at different times, creating confusion:
'The Supreme Court was confronted with this predicament in a recent case, J Mitra & Co Pvt Ltd vs Assistant Controller of Patents & Designs.
The judgment described the case as a “classic illustration of the confusion which has emerged on account of the postponement of in-part commencement of the Patents (Amendment) Act 2005”. There were amendments in 1999 and 2002, making significant changes in the patent law. But some sections were not notified, and others telescoped into the later amendments, creating a bewildering situation. This is what happens when different dates are appointed for the coming into force of different parts of the same Act, and the government does not enforce some portions.'

Venkatesan, thanks for pointing this out.

Update 2:
Apparently Aeltemesh Rein v. Union of India decided by the Supreme Court has already upheld a 'duty to consider' similar to that in Fire Brigades Union. I haven't read the case myself yet, but picked this up from a note Vikram sent (thanks) - am I correct in this? Has anyone else seen this case?

The power of the Executive to enter into agreements and treaties: Bucking the conventional wisdom?

Today's Hindu features a column which reproduces a press statement issued by three retired judges (Justices Krishna Iyer, PB Sawant and H. Suresh). This statement provides a stimulating analysis of the power of the Indian executive to enter into agreements and treaties. Though framed against the context of the current debate over the 123 agreement, their argument has important ramifications for the power of the executive to engage in foreign affairs and diplomacy in general. Those who witnessed the debate over the Dunkel Draft in the 90s will recall that Justice Krishna Iyer had made similar arguments at that time. What is interesting about this stance is that it runs contrary to the position adopted by noted scholars of international law such as Professor V.S. Mani and Dr. P.C. Rao. This conventional account suggests that, following the British practice, the Executive has wide powers to engage in matters relating to foreign affairs.

I hope to analyse this issue in greater detail in the near future. For now, I draw attention to the arguments set out in the piece so that others who have had a chance to study the broader issue can assess and react to the arguments. The link to the full piece is included in the first line of this post, while the relevant constitutional analysis is extracted below:

"1. The Executive has no power to enter into any agreement, either with a foreign government or a foreign organisation, which is binding on the nation. The agreement will be binding only when it is ratified by Parliament. There is no provision in the Constitution which gives such authority to the Executive. We have a written Constitution and, therefore, we must have a written provision in the Constitution which gives such authority to the Executive.

2. Articles 73 and 253 and Entries 6, 13 & 14 in the Union List of the Constitution refer to the powers of the Executive. Article 73, among other things, states that, “----the executive power of the Union shall extend (a) to the matters with respect to which Parliament has powers to make laws, and (b) to the exercise of such rights, authority and jurisdiction as are exercisable by the Government of India by virtue of any treaty or agreement.” This means that the matters on which Parliament has no powers to make laws are also matters on which the Union Government cannot exercise its executive power. It also means, conversely, that the Union Government cannot exercise its executive powers beyond the legislative powers of the Union. Both these propositions have an underlying assumption that, before the Union Government exercises its executive power, there is a law enacted by Parliament on the subject concerned. Some argue that the provisions of Article 73(1)(a) give power to the Executive to act on subjects within the jurisdiction of Parliament, even if Parliament does not make a law on those subjects. This is both a distortion and a perversion of the said provision and a subversion of Parliament’s supreme control over the Executive. If this interpretation is accepted then the Union Executive can act on all subjects on which Parliament has to make law, without there being any law made by Parliament. You can thus do away with Parliament and Parliament’s duties to make laws. We will then have a lawless government. Democracy presumes there should be a rule of law and all Executive actions will be supported by law and that there shall be no arbitrary action by any authority, including the Union Executive. It may also be necessary in that connection to remember that it is for this very reason that when Parliament is not in session and, therefore, unable to enact a law, the power is given to the President to issue an ordinance (which is a law), so that the Executive may act according to its provisions. These ordinances are to be placed before Parliament within six weeks of its reassembly, and if Parliament approves they become law. The Constitution-makers were, therefore, clear in their mind that the Executive cannot act without the authority of law and it has no power independent of law made by Parliament.

3. Article 253, which is relevant in the context of the present Indo-U.S. nuclear deal, is very specific on the subject. It says, “Notwithstanding anything in the foregoing provisions of this chapter, Parliament has power to make any law ----- for implementing any treaty, agreement or convention with any other country or countries or any decision made at any international conference, association or other body.”

This Article gives specifically the power to Parliament to make laws on treaties, etc., with other governments or even on decisions made in international conferences, etc. This makes it clear that even the treaties, etc., entered into with other countries or decisions made at international conferences have to be translated into laws and read with the provisions already discussed above, before they are acted upon by the Executive.

4. The Union List Entry 6 makes “Atomic energy and mineral resources necessary for its production” a subject matter of legislation of Parliament. Similarly, Entry 13 which reads, “--- participation in international conferences, associations and other bodies and implementing of decisions made there at” and Entry 14 which reads, “entering into treaties and agreements with foreign countries and implementing of treaties, agreements and conventions with foreign countries” make them also subject matters of legislation by Parliament.

5. All these provisions make it abundantly clear that the present Indo-U.S. nuclear deal cannot be implemented by the Union Government unless it is translated into a law enacted by Parliament. Any action, therefore, taken by the Union Government to implement the said deal without the authority of Parliament is unconstitutional, because it amounts to the usurpation of power of Parliament by the Union Executive. It is also undemocratic because the Union Executive will be acting arbitrarily, trampling both the rule of law and also the wishes of the people of India. It will be nothing short of an arbitrary rule by the Executive, leading to an unconstitutional government in the country, because what is arbitrary is also unconstitutional."