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 has been curated by Bangalore-based lawyer and tutor of democracy and active citizenship, Malavika Prasad.
Parliament, or all political activity it seems, hinges on the two hands of the clock. It is all about the timing, perhaps now more than ever, when political power can be wrested in a matter of minutes. The 48 months of the present government, the three weeks of a truncated Winter Session of Parliament, the 15 days given to a political party to prove its majority on the floor of the Assembly, the 36 minutes of the Budget Session 2018 in Lok Sabha during which the entire Budget and all attendant Bills were passed without any discussion – time has been courting much controversy.
Time in Parliament is mostly seen from the perspective of time spent on debates or time wasted on disruptions. The recently concluded Budget Session of Lok Sabha witnessed only 34.05 hours of work as against 127.45 hours of interruptions or forced adjournments. The 29 sittings of Lok Sabha, if smoothly conducted would have led to 174 hours of work, during which, in an almost utopian scenario, all of the 67 bills pending before the session could have been passed. Only five Bills, however, could be passed which included the Finance Bill (fiscal proposals of the government) and Appropriation Bill (budgetary proposals of the government).
But the interplay between time and politics is much more nuanced. In the hands of political players, especially those in power, time – ordinarily, an instrument for enhancing democratic rights – can paradoxically become an instrument to undermine democratic decision-making.
Take for instance the five bills that were notoriously passed without any debate on the floor of the House over two days, amidst chaos and continuous sloganeering by MPs which the Speaker chose to overlook. A No-Confidence Motion, on the other hand, remained pending for 13 days as it was not allowed to be similarly taken up amidst chaos.
It is commonly said that democracy is undermined when the government does not make a concerted effort to reach out to the Opposition to prevent any wastage of Parliament's time. What is less often explored is the manner in which time is manipulated or even wasted at will during parliamentary proceedings, often to evade discussions and confrontation.
In this two-part piece, we explore the various contexts in which "time" is used as an instrument to weaken the democratic functioning of Parliament, and why, despite its limitations, time is seen as an appropriate metric for the conduct of political processes in a democracy.
Selective invocation of rules of procedure with respect to time
Many parliamentary procedures are time-bound with prescribed timelines for undertaking various activities – time for submitting questions, time for giving notices for debates etc. Though timelines are prescribed for administrative ease, there is a genuine expectation of a certain quality of outcome at the end of that time period.
Though the passage of time by itself does not guarantee the achievement of intended quality-outcomes, bypassing time-bound procedures indicts the legitimacy of the outcome. It is for this reason that set parliamentary procedures and unwritten conventions are disturbed only under exceptional circumstances. However, deviations from procedure and convention have now become more common.
On 28 December, 2017, the law minister introduced the Muslim Women (Protection of Rights on Marriage) Bill, 2017. Per Rule 74 of Rules of Procedure and Conduct of Business in Lok Sabha, a motion for consideration and passing of a bill should be made two days after introduction of a bill. The premise of this rule is that sufficient time should be made available to MPs to study the bill and to suggest amendments, the notices for which have to be submitted a day in advance, per Rule 79.
In this case, for no stated reason, the Speaker allowed the Bill to be taken up for consideration on the same day on which it was introduced, providing MPs with little over an hour's time to submit notices for amendments. When several Opposition MPs questioned the hurry in which the Bill was being considered, asking that the Bill be put to a Standing Committee for greater scrutiny, no coherent reasons were provided by the minister. Despite vehement opposition, after four hours of debate, the Bill was passed by Lok Sabha.
In Rajya Sabha, when the Bill came up for debate, several Opposition MPs submitted a notice to refer the Bill to a Select Committee. Arun Jaitley, the Leader of the House in Rajya Sabha, opposed these notices and one of the reasons cited was that the notices were not submitted a day in advance, as required by the rules, and the government was 'taken by surprise' by the sudden notices.
Time-bound procedures are overlooked by government in one House and sought to be enforced in the other House.
The same selective respect for rules is showcased by the Opposition. Perhaps, both the government and the Opposition are vying to outwit each other, but in the process, the sanctity of the policy-making process suffers.
Controlling Parliament's time, controlling the discourse
Parliament embodies the will of the people, represented through individual legislators. However, it is the executive which sets the time for parliamentary sessions and drives most of the legislative agenda. This is based on an unstated, though debatable, understanding that the executive, through the performance of this function, implements the people’s mandate.
A question rarely asked is whether the political executive can legitimately command the time of legislators in this manner, as legislators' time is representative of the time of the public. This question assumes importance because this unbridled power, coupled with a lack of understanding about the kinds of demands on our time that a government can legitimately make, can be easily misused with no recourse.
Unlike the South African parliament, which announces the schedule for the whole year at the beginning of the year, or the Swiss parliament, which announces the schedule not only for the current year but also for the following two years, the dates for any session of Indian Parliament are announced only three to four weeks prior to a session.
The only date known with certainty is perhaps the date of presenting the Budget. Can the political executive unilaterally decide and impose session schedules upon legislators, at short notice? Or, drawing inspiration from the work of Elizabeth F Cohen in The Political Value of Time (2018), can the government legitimately exercise a prerogative to command the time of citizens, in absence of any mechanism to seek accountability to prevent the kind of situation as arose in the Winter Session of 2017?
By convention, the Winter Session of Parliament usually begins in the second or third week of November and wraps up before Christmas. In 2017, however, in the wake of the Gujarat Assembly elections which had kept most of the ministers and MPs occupied, the Winter Session started only on 15 December, 2017, and ended on 5 January, 2018, making it one of the shortest sessions of the current Lok Sabha.
The government can be criticised for prioritising electioneering over policy-making, but on deeper inspection, it appears that the seemingly mundane function of deciding the dates of a parliamentary session enables the government to control the discourse as well.
When a Parliamentary Question was asked on why the Winter Session was delayed, the Minister of Parliamentary Affairs responded that time and duration of each session is decided by the government keeping in view the 'exigencies of legislative business'. He then justified the rescheduling of Winter Session by citing precedents from the years 1990, 1994 and 2013.
In doing so, the underlying argument was that 'if an event has occurred a certain number of times in the past, it gains legitimacy despite its normative dubiousness, and thus can be replicated'. Needless to say, the delay in commencement of the Winter Session added yet another dangerous precedent to the list, which future governments can take advantage of.
Put differently, it appears that 'exigencies of legislative business' are not the sole consideration of such decisions which are unethical if not outrightly unconstitutional given the lack of accountability that characterises the decision-making process. One way to democratise this process would be for Parliament to constitute a Joint Committee comprising representatives of all parties and independents, from both Houses, to decide the timetable for each session of Parliament at the beginning of a year, akin to the South African process.
Compromising legislative time in Parliament through ordinance making
It must be remembered that legislative business is conducted outside of Parliament's time as well. Such business is carried out through the formulation of rules, part of a routine executive exercise, or by the promulgation of Ordinances, an exceptional power to be sparingly used according to the Constitution. Governments, however, have made the exercise of extraordinary powers routine. Ordinance promulgation has been no exception to this trend, being resorted to in cases where smooth passage through Parliament is a tough bet.
Once promulgated, an Ordinance has to be approved within six weeks of the first sitting of Parliament session immediately following its promulgation. This time limitation then becomes a legislative exigency and if, despite this, the government fails to get the Ordinance approved, it is re-promulgated.
In the past, the government has undertaken multiple re-promulgations of Ordinances as it bides its time in Parliament – the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Amendment Ordinance 2015 was promulgated thrice, the Enemy Property (Amendment and Validation) Ordinance 2016 was promulgated five times in one year itself, setting a record of sorts.
Aside from being a 'fraud on the Constitution', successive and mechanical re-promulgation of Ordinances makes a mockery of Parliament, whose job is to legislate by deliberation. One may ask: why to allocate time for legislative deliberations when Parliament is merely required to approve Ordinances promulgated by the government, which would anyway be re-promulgated at the slightest indication of parliamentary resistance.
Despite all these ways in which Parliament's time can be dictated by the whims of the government, time remains one of the most crucial measures of the success of a Parliament's session.
Why it is so and whether it is desirable will be explored in the second part of this piece.
Verma is a lawyer, public policy enthusiast, and founder of Maadhyam - a digital platform enabling stakeholder participation in policy-making. Citizens can engage with Maadhyam on Twitter and Facebook.
Updated Date: Jun 21, 2018 15:27 PM