Editor's note: The recently concluded Budget Session of Parliament was, by all accounts, the least productive in at least a decade, marked by protest, adjournment, and very little constructive debate, let alone passage of bills. Firstpost will examine, by way of a multi-part series spread across a six-week span, the reasons why the Parliamentary process in particular, and the democratic apparatus in general, has failed India's citizens. The clutch of essays, written by experts in the Constitution and constitutional law, will investigate the defects, introduced by design, that have enabled the degeneration of legislative functioning. Series curated by Bangalore-based lawyer and tutor of democracy and active citizenship, Malavika Prasad.
We have just seen another Parliament session wiped out with little work done. A no-confidence motion – which is the test of the government's legitimacy – was not taken up in Lok Sabha as the Speaker said that she was unable to verify whether fifty members supported its introduction. The Finance Bill and all government expenditure for the year were sanctioned without discussion. Several important legislative bills remain to be debated. And many national issues were not discussed as the two Houses were repeatedly adjourned on grounds of some Members of Parliament (MPs) disrupting the proceedings.
It appears that our Parliament is in crisis. We need to have a broad public debate on its working. In this article, I outline some of the areas where we need reforms: the anti-defection law, office of profit, recorded voting, privileges of Parliament, determining the timing and agenda of Parliament, and the legislative process.
Anti-defection law: The Tenth Schedule (better known as the anti-defection law) inserted into the Constitution in 1985 requires every MP to adhere to the party line on every vote, failing which they would get disqualified from Parliament. The stated reason was to address defections that led to instability of governments.
However, the instrument used was so blunt that the effect has been to convert Parliament from a group of thinking legislators to a set of people who have to perforce follow the diktat of the party leadership. Instead of 545 MPs in Lok Sabha considering the aspects of a Bill and voting upon it, we are left with the decisions being made by a handful of party leaders. The anti-defection law applies to every vote, so MPs representing divergent interests will have to vote the same way (think of MPs from the same party from Tamil Nadu and Karnataka on a discussion on sharing of Cauvery waters).
Ironically, this law does not seem to work well when it comes to the stability of the government. The last confidence motion in Lok Sabha was in 2008 (when the Left parties withdrew their support to the UPA government following the nuclear deal with the United States). Twenty-one MPs voted against the directions given by their parties.
Strangely, the provisions of anti-defection apply to Rajya Sabha as well, though that House has no role in determining the stability of the government. An important and urgent reform needed to restore the role of MPs as thinking legislators is to repeal the Tenth Schedule. At the very least, its application must be restricted to confidence and no-confidence motions.
Office of Profit: The Constitution states that MPs would be disqualified if they hold an office of profit under the government (other than that of a minister). The principle is that legislators should be free from any obligations to the government so that they can perform their work in an independent manner. The Constitution allows Parliament to exempt any office from this provision by enacting a law. The current exemption list is large (for example, the amendment made in 2006 includes the chairperson or trustee of any trust or society, as well as that of 55 government bodies such as the Indian Statistical Institute and IFFCO).
Indeed, many states have created the position of "parliamentary secretary" and exempted them from the list to get around the constitutional limit on the number of ministers (15 percent of the Assembly strength). The exemption list for the office of profit needs to be pruned down to bring it in line with the principle of separation of roles of the legislature and the executive.
Privileges: The Constitution specifies that the privileges of Parliament would be that of the House of Commons until Parliament makes a law to codify them. The rationale for the privilege is that MPs should be free to make any parliamentary intervention, and no one should be allowed to interfere with this freedom.
However, the absence of codified privileges has led to ambiguity, and arguably, excessive use of this power. There have been several instances (though mostly by state assemblies) where criticisms of legislative functioning have led to privilege motions (instead of a defamation suit) and convictions. This long-pending issue needs to be examined and privileges codified with a narrow remit.
Recorded voting: Our Parliament has adopted the British system of having a voice vote on every motion, and a recorded vote (division) only if some MP demands so. The convention in Britain has evolved to ensure that all key votes, including the vote at the end of each of the three readings of a Bill, have a division. We rarely do.
In the full five years of the last Lok Sabha, just 11 percent of Bills had recorded voting, and the figure for the previous Lok Sabha was a paltry three percent. This means that there is no record of how an MP voted on any issue or even whether they were present in the House. This reduces the accountability of the MP to their electorate, as in the absence of any record, they cannot be asked to justify their voting behaviour. We need to adopt the convention that the vote at the end of every Bill or major issue should be recorded.
Agenda of Parliament: The work of Parliament is largely set around the priorities of the government. Indeed, there is no annual calendar of sittings. The Constitution only requires that there must be a sitting at least once every six months. The President, on the advice of the council of ministers, summons the Parliament. Thus, when the government wishes to avoid parliamentary debates on contentious issues, it can postpone parliamentary sessions or curtail them.
We have seen the number of annual sittings reducing from 125-140 days in the 1950s and 1960s to about 65-70 days in the past two decades. There are two possible ways to address this: specify an annual calendar of sittings, and require a session if there is a demand by a significant minority (say 25 percent) of members.
The daily agenda, too, is decided by a consensus of all parties, including the ruling party. Opposition members have often complained that their issues are not listed and they are forced to disrupt proceedings to bring attention to such issues. There are several ways to tackle these: increase the number of sittings to enable discussions on more topics; discuss an issue if there is a minimum number of MPs asking for it; have Opposition days, when the leader of the Opposition decides the agenda for discussion (the British Parliament has 20 such days per year).
Three aspects of the legislative process need to be revisited: scrutiny by committees, issuance of Ordinances, and Money Bills
Committees: Similar to the British parliament, our Constitution specifies that all Bills have to go through three readings: for introduction, consideration and passing. In the United Kingdom, all Bills are also examined by Committees of each House. Since 1993, the Indian Parliament has constituted departmentally related standing committees, which are joint committees of the two Houses, which examine those Bills that are referred to them.
However, the Speaker (or chairman of Rajya Sabha) decides to refer Bills, in consultation with the relevant minister. While 71 percent of all Bills were referred to Committees in the last Parliament, the figure has dropped to 27 percent in this Parliament. Making the committee process mandatory would lead to deeper scrutiny of Bills, including inputs from expert witnesses, before they are passed.
Ordinances: In most democracies, legislatures have the exclusive power to enact laws. In case of an urgent requirement, an emergency session of the legislature is convened. Our Constitution allows the government to enact laws through an Ordinance when the legislature is not in session and if "circumstances exist which render it necessary… to take immediate action".
Whereas this was conceived as a measure to be used rarely, over 10 Ordinances have been issued annually on average. There have even been instances when the Parliament was adjourned and prorogued to enable issuance of an Ordinance. Perhaps, it is time to repeal this facility and to summon the Parliament for a session in case of an urgency.
Money Bill: The Council of Ministers requires the confidence of Lok Sabha; Rajya Sabha has no say in the matter. The government requires funds to implement its priorities and can come to a halt if funds are blocked. Hence, the Constitution says that any Bill that contains matters dealing only with taxation and government expenditure (and matters incidental to these) would be termed as a Money Bill and will require the sanction of Lok Sabha. Rajya Sabha has only a recommendatory role. The Speaker has the power to certify whether a Bill is a Money Bill.
In recent years, several Bills such as the Aadhaar Bill and the Finance Bills of the last three years, which contain provisions without any relationship to taxation or government expenditure, have been marked as Money Bills.
One way to reduce the discretionary power of the Speaker would be to Constitute a committee (including members of the Opposition) which will determine whether a Bill is a Money Bill.
A well-functioning national legislature is a necessary condition for a vibrant republic. Our Parliament has to occupy its rightful place as a forum for effective scrutiny of proposed laws and as an institution of accountability over the government. I hope this note provides the background to some possible ways to strengthen the working of Parliament.
The author is co-founder and president of PRS Legislative Research.
Updated Date: Apr 23, 2018 12:40 PM