This is a piece written by Professor T. Devidas (Former Head of Department, Faculty of Law, Mysore University; Former Faculty, National Law School of India University)
Unlike the Westminster constitution under which the House of Commons places executive power with whosoever commands the confidence of the House, the Indian Constitution has itself vested executive power of the Union in the President under Article 53(1) and the executive power of the State in the Governors under Article 154(1).
Clause 3 of these Articles indicate the locating of functions which when read with Articles 74 and 163 mandate the manner of discharge of functions only with the aid and advise of the Council of Ministers. It is noteworthy that neither Article 74 nor Article 163 make any mention of powers and they deal only with functions.
Admittedly, functions can be discharged only by the exercise of powers. Here, the Constitution has adopted the principle of “interaction by co-ordination” in place of “interaction by integration”. This is because major policy choices have been already determined by the Constituent Assembly and incorporated in Parts III as Fundamental Rights & Part IV as Directive Principles of State Policy which are declared to be fundamental in the governance of the country (Article 37) with a duty on the State to apply them in the making of laws. The provisions of these Partshave been taken from the Universal Declaration of Human Rights 1948.
The control on executive power is totally lost when the integration of executive and legislative powers is made by aping the Westmister model. It violates the basic structure and is the main reason that scams and scoots that have plagued our nation. The duty to ensure compliance with every law as laid down by Articles 256 and 355 has not been even read, let alone implemented by the Executive, legislature and the Judiciary.
Invoking Sec 166 (dereliction of official duty), Section 405 (Criminal Breach of Trust) read with Section 44 (defines “injury” as “violation of right”) of the Indian Penal Code are sufficient to ensure compliance with every existing law. It is surprising that these provisions are not used even by the CBI or the ED or the NIA even today. The Privy Council has ruled in 1935 itself that when a public servant acts in disregard of the directions of the law governing him, he cannot be said to be acting pursuant to powers and duties of office but in disregard of them and sanction for prosecutiun as contemplated by sec 197 Cr.P.C was inapplicable.
Art 361 which has not been used so far incorporates this principle. No person who is part of the Government (Executive, Legislative and Judicial) and guilty of acting in disregard of the governing law will be able to escape conviction under Sections 166, 405 & 44 IPC.
In order to effectively combat and end corruption, these provisions must be regularly used. This will ensure that no public servant can escape penal action for dereliction of duties.
It is about time for us to re-read the Constitution and Laws with a different prism than the archaic British legacy we were part of and have still refused to shed.
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