How Political Power Is Actually Exercised

The point a law student should notice. A federal division is itself a limit on power. It means that no single body in the country can lawfully do everything, and that a person aggrieved can ask a court to say that the body which acted was not the body entitled to act.

The bodies that are none of the three

Modern states run on institutions that fit no classical box: election commissions, central banks, auditors, human rights commissions, information commissions and regulators. They exercise real power and are deliberately insulated from the government of the day. Whether that insulation is democratic is one of the standing arguments of Module IV.

How power moves between them

A constitution allocates power on paper. Practice redistributes it, and four of the movements are worth knowing by name.

From the legislature to the executive. Modern legislation is framed in skeleton and filled in by rules, regulations, orders and notifications made by departments. This is delegated legislation, and by volume it is now most of the law in force.

From elected bodies to permanent officials. Ministers change; secretaries and directors do not. The permanent service holds the files, the expertise and the drafting pen. This is the phenomenon Weber predicted when he said that the modern state runs on bureaucracy and that the trained official becomes very hard to displace.

From the state to the courts. Where a legislature is deadlocked or unwilling, litigants turn to constitutional courts, and courts that accept the invitation end up making policy.

From the state to bodies outside it. Regulators, international obligations, credit rating agencies, large firms and the market itself constrain what a government may practically do.

The limits on the exercise of power

This is where political science and law meet, and it is the part a law student should be able to write best.

Constitutional limits. Every organ has only the power the Constitution gives it, and an act beyond that power is void. The Fundamental Rights operate as a boundary on what may be enacted at all.

Judicial review. A court may examine an executive action or a statute and set it aside for want of power. In India this is the single most important practical limit.

The basic structure. Even the power to amend the Constitution is limited: the Supreme Court has held that an amendment may not damage the Constitution's basic structure. This is the outer wall of the whole system and is taught properly in Module III.

Federal limits. A Union law on a State subject, or the reverse, is open to challenge.

Time limits. Every legislature and every government holds office for a fixed term and must go back to the electorate.

Political limits. Opposition parties, a free press, organised opinion, and the plain fact that a government which loses the confidence of the lower house falls.

A worked example

A State government decides that all commercial vehicles more than fifteen years old must be taken off the road.

The decision is taken in a meeting of the Council of Ministers on a note prepared by the Transport Department. Nobody outside government is present.

The power to act is looked for in the parent statute. If the statute permits the State to prescribe conditions of fitness, the decision can be implemented by a notification. If it does not, an amendment must go to the legislature, which is slower and public.

The instrument is drafted by officials, vetted by the Law Department, and issued as a notification. It becomes binding on lakhs of people who never saw it debated.

The resistance begins. A transporters' association meets the Minister. A newspaper runs a piece on drivers who will lose their livelihood. A political party in opposition takes it up. This is the exercise of power on the government, which is the subject of the next chapters.

A challenge is filed in the High Court, saying the notification is beyond the parent Act and violates the right to carry on a trade. The court now decides whether the government had the power at all.

The election two years later is fought partly on it. If the government loses, the notification may be withdrawn by the next one.

Six different exercises of power, in six different places, on one decision. An answer that describes only the first has described almost nothing.

Distinctions that carry marks

What this is NOT

The exercise of political power is not the same as the government's activity. Parties, courts, the press, interest groups and voters all exercise political power, and none of them is the government.

It is not exhausted by law making. Most exercises of power in a modern state are administrative: a licence granted, a file cleared, a tender awarded, a prosecution launched or not launched.

A written constitution does not by itself limit power. Limits work only where an institution exists that is willing and able to enforce them, which is why the independence of courts and election commissions is a political question and not a technical one.

Quick revision

1. Power is political when it is exercised for the whole society, backed by the state's monopoly of legitimate force, and claimed as binding.
2. Three organs: legislature makes, executive enforces, judiciary applies and reviews.
3. India has checks and balances rather than strict separation of powers.
4. Power is also divided vertically: Union, State and, since 1993, local government.
5. Four movements in practice: to the executive by delegated legislation, to permanent officials, to the courts, and to bodies outside the state.
6. Limits: constitutional, judicial review, the basic structure, federal, temporal and political.

Test yourself

1. What makes an exercise of power political rather than merely private? Three things. It is exercised for the whole society, so that it binds everyone in the territory including those who opposed it. It is backed by the state's monopoly of the legitimate use of physical force within that territory. And it is claimed as authoritative rather than offered as one view among many. An employer's power over an employee has none of the three.

2. Does India follow the separation of powers? Explain. Not strictly. Ministers are members of the legislature and are answerable to it, and the executive makes an enormous volume of delegated legislation, so the functions are not kept in separate hands. What India has instead is a system of checks and balances: the courts may review both legislative and executive action, the legislature controls finance and may remove the government, and the executive's appointments and powers are subject to law.

3. Explain delegated legislation as a movement of power. Modern statutes are enacted in skeleton form and completed by rules, regulations, notifications and orders made by departments under an enabling section. The legislature therefore settles the principle and the executive settles the content, which by volume is now most of the law in force. The power to make binding rules has in practice moved from the elected chamber to the permanent administration.

4. Name and explain three limits on the exercise of political power in India. Constitutional limits: an organ has only the power the Constitution confers, and an act beyond it is void. Judicial review: a court may examine a statute or an executive act and set it aside for want of power, which is the most important practical limit. Temporal limits: every legislature and government holds office for a fixed term and must return to the electorate, so that no exercise of power is permanent.

5. Why is a written constitution not by itself a limit on power? Because a limit works only if some institution is willing and able to enforce it. A guarantee that no court will apply, or that an executive can ignore without consequence, is a sentence and not a limit. This is why the independence of the judiciary, the election commission and the audit institutions is treated as a political question about the reality of limits, and not as a matter of administrative arrangement.