The defining characteristic of an authoritarian state is the unchecked power of the executive. Absence of opposition, rule of law, independent judiciary, freedom of press, civil liberties are all outcomes of unaccountable executive power, not the determinants. In India, checks to executive power are provided by partial separation of legislative power and an independent judiciary. However these democratic constraints were infamously suspended during the emergency imposed by Indira Gandhi in 1975-77, citing “internal disturbances”. With one shot and complicity of a mute public, democracy was suspended.

In 1977 when the Parliament was reinstated, it immediately amended the Constitution (44th amendment), inter alia, to delete internal disturbances as permissible grounds for imposition of emergency and roll back presidential powers to promulgate ordinances unchecked. However even though the constitutional bar to imposition of national emergency has become higher, the executive has expanded unchecked, this time through wholly unconstitutional means. The most egregious of Indira’s excesses during the emergency was bypassing the legislature, using the enhanced powers of the president to enact laws. Today the executive sidesteps the legislature through unconstitutional use of executive orders (notifications) and willful violation of laws. A review of three sample GoI notifications illustrates the extent of executive overreach, arrogating unto the executive political decisions such as ideological direction, state-citizen relationship, and arbitrary exemption from existing laws – all functions of the parliament, in a representative democracy.

In 1950, a GoI resolution was used to set up the planning commission. To retain complete executive control, the prime minister chairs the commission and other members, almost exclusively non-elected, are appointed through an opaque and arbitrary process. The planning commission through its five-year-plans and plan expenditure usurps powers of the constitutionally mandated finance commission (to distribute monies between the centre and states), and undermines federalism by instituting a matching funds requirement on state governments in centrally-sponsored schemes. The commission approach to welfare and development is in direct contrast to that of elected representatives and thus undemocratic. For instance, the planning commission has taken a minimalist stand on the entire food security proposal including imposing a top-down and smaller number of BPL families than that asserted by state governments, while advocating outright dismantling of the PDS to pave way for cash transfers through UID numbers (a proposal supported by the World Bank).

The Unique Identification Authority was set up in 2008 by a GoI notification to provide biometric based identification number (UID) to every single resident of the country. The UID number is purposed to form the mandatory basis of all state-citizen interaction, especially for welfare schemes. There is apprehension that the universal, ubiquitous and permanent character of UID numbers will be used by the state for data collection, convergence and surveillance. In Philippines, the Supreme Court struck down a similar executive order, which instituted a biometric based national identification project on grounds of executive overreach, stating, inter alia, “as said administrative order redefines the parameters of some basic rights of our citizenry vis-a-vis the state as well as the line that separates the administrative power of the President to make rules and the legislative power of Congress, it ought to be evident that it deals with a subject that should be covered by law”. After two years of functioning during which it has solidified almost all operational details including binding agreements with state governments, banks, ministries, and private companies, the UIDAI is seeking retrospective Parliamentary sanction - motivated not by (late onset) deference to democracy, but to achieve statutory status in the face of growing public opposition.

In January 2009, a GoI notification froze NREGA wage rates at Rs 100, leading to payment of less than minimum wage on public works in nineteen states. This is in violation of the Minimum Wage Act, a situation that the supreme court has called “forced labour” categorically prohibited under Article 23 of the constitution. The Center, in a post fact attempt to reconcile the notification with the Minimum Wage Act, has asserted that state governments are liable for difference (if any) between the reimbursed amount of Rs 100 and the prevailing state minimum wage – the notification then is ultra vires of the Act itself, which mandates that central government shall meet the cost required for payment of wages for unskilled manual work and also undermines federalism by attempting to shift an increasing component of centre’s financial obligation to the states. There is overwhelming legal consensus, including GoI’s own legal advisor (ASG Indira Jaising), Andhra high court, two ex-chief justice of India and thirteen other legal luminaries that the notification is unconstitutional and must be revoked.

Bypassing the legislature is designed to avoid public scrutiny and nullify Opposition (also a 75-77 Emergency hallmark). Recently leaked US Embassy cables document the intense US pressure on the UPA government for “quick completion of the nuclear deal1” in order to “implement commercial cooperation, providing U.S. firms access to an estimated USD 150 billion market2”. However domestic opposition to the nuclear deal and terms of the nuclear liability bill impeded efforts in this direction. A cable dated January 09, 20093 summarizing SS Menon’s meeting with assistant secretary Richard Boucher and ambassador Mulford provides insight in to the cynical subversion of democratic processes. The cable notes, “Menon expected the next Parliament to take up the Convention on Supplementary Compensation for Nuclear Damage (CSC). (Comment: Menon did not mention the possibility of bypassing parliament raised by external affairs minister Mukherjee, reported ref B.)” (emphasis added). This matter is especially concerning in a coalition government, which at the very least means that no single party is able to represent the aspirations of the bulk of the country’s populace. Thus bypassing the legislature (which in the case of UPA-I would have meant the Left parties) means that the government is not only nullifying the Opposition, but also many of its own coalition partners, and the constituencies they represent.

The executive in its overreach has also rendered the judiciary impotent. Government of India has been in contempt of a pro-labour court order that affects virtually the entire unorganized labour force of the country for one and a half years. Commenting on the situation, former chief justice of the Delhi high court, A.P. Shah said, “Where is the rule of law if the government can so easily violate a court order? The government has been in contempt for more than one year, which virtually means that the common man has no legal remedy against the state”. That contempt of court by the Executive is not a rare occurrence is evident from the Andhra Pradesh high court order (July 2009) phrase, “XYZ Judge doesn’t want to give a paper order”, as in an order, which will not be complied with by the executive. Sadly the judiciary too has ceded moral high ground by evading transparency and accountability, its consequence manifest in AG  Vahanvati’s bizarre defense of tainted CVC, PJ Thomas in the supreme court, "If integrity is the criterion, every judicial appointment will be subject to scrutiny. Every judicial appointment will be challenged". Hamstrung by the highest pendency of cases in the world and with the state ignoring its orders at will, the Judiciary is no longer a reliable check on the arbitrary exercise of executive power.

An expansive executive (with Parliamentary support), was initially justified on grounds of welfare. The first constitutional amendment inserted the ninth schedule, which made Actsspecified under it non-justiciable, and established primacy of the directive principles of state policy over some fundamental rights. Today though the Indian state is unabashedly capitalistic. In the planning commission document, “India Vision 2020”, there is no equivocation – and clear intent to mutate the citizen from a political participant to a consumer in a market economy- it says, “It is as important to create job opportunities for all citizens in a market economy as it is to provide universal suffrage to all adults in a democracy”. Aware that the underlying principles of a market economy are in conflict with the welfare state of the directive principles, the government is divesting itself of its fundamental responsibility to provide social security. Finance minister, Pranab Mukherjee in his Budget 2010-11 speech said, “With developmentand economic reforms, the focus of economic activity has shifted towards the non-governmentalactors, bringing into sharper focus the role of government as an enabler. An enabling government does not try to deliver directly to the citizens everything that they need."

While the neoliberal agenda advocates retreat of the welfare State, free-market capitalism needs an omnipotent executive. As a senior women’s leader noted, heads of state on official visits are routinely accompanied by a contingent of CEOs - government representatives acting as intermediaries to further corporate interest. In this role, the executive must override democratic constraints to privilege private interest over that of the public. An omnipotent executive thus is a natural corollary of privatization. Both undermine political equality, which is the crux of democracy. The former by arbitrary breach of constitutional processes and the latter by abridging rights with decreasing spending power.