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.
If you've ever seen a debate progress in a House of Parliament, you might have noticed ministers sitting and taking notes as members speak. This is a small act of cognisance, that goes a long way towards turning constructive criticism into productive remedial action. As we bid goodbye to the least productive Budget Session since 2000, the discourse needs to move beyond expenditure incurred in running the House, and over to the cognitive-behavioural patterns that have led our representatives to stop listening to each other.
In his book 'Two Presidents are Better than One', David Orentlicher makes a case for a bipartisan executive branch. His fundamental position is: "Partisan conflict is not a phenomenon of the people we elect but of the political system that we elect them into". In the same vein, if structural defects of our legislative system enable partisanship and the current parliamentary deadlock, the question to explore is: what would a bipartisan legislative branch look like?
The path to a bipartisan legislature
To make the case for a successful bipartisan government, Orentlicher invokes Game theory: the science of strategic reasoning that studies the behaviour of rational and intelligent game players who are trying to maximise their gains in interaction with other players, in a context of strategic interdependence.
The most common example cited for this is the prisoner's dilemma: Two prisoners, suspected of burglary, are taken into custody. If neither of them confesses, ie, they cooperate with each other, they will both be charged the lesser sentence. The police will question them in separate interrogation rooms, which means that the two prisoners cannot communicate, but they are completely aware that the other prisoner has been offered the exact same deal.
This is solved by what we call the Nash equilibrium: the best decision a player can make, taking into account the other players' decision, where a change in a player's decision will only lead to a worse result if the other players stick to their strategy. Extrapolated to governance, this means that a bipartisan government needs proper checks-and-balances on mutual trust, such that the cons of losing trust are deterrent enough for cooperation to be consistent.
For the Indian Parliament to arise out of the impasse of partisanship, three immediate and viable reforms are the removal of anti-defection rules, checks on the abuse of the institution of Speaker, and strict regulation of passing bills without discussion. Next, we need to introduce measures that give relevance to debate.
For instance, the guillotine process which allows the government to pass Demands for Grants of ministries without discussion should have a binding clause that guillotine not be resorted to before the last five days of the session (this session it was used with 15 days to go till session end).
The Speaker should also initiate an expedited enquiry into why mics of members were being turned off while they were asking for division vote on the Payment of Gratuity (Amendment) Bill 2017 which was being passed in Lok Sabha without debate this Budget session. The House also needs to introduce measures to ensure strict compliance with the Business Advisory Committee reports on time allotted to bill debates since this committee involves representatives of all parties and divides business by consensus.
To begin with, we need to grit our teeth and set a strong precedent by invalidating all bills bulldozed through the House either without debate or when there was a request to send the bill to a Select/Standing committee, such as the Triple Talaq Bill in Lok Sabha.
Our MPs are incentivised towards partisanship
A study by IIM Bangalore reviewed Lok Sabha data for all up till the 15th Lok Sabha (currently, the 16th Lok Sabha is in session), and interviewed MPs, and found that:
- Legislators, who participate in disrupting Parliament, get more opportunities from the party to speak in parliamentary debates than legislators who do not participate in disruptions, and
- Legislators, who participate in disrupting Parliament, get a higher chance for party electoral re-nomination than legislators who do not participate in disruptions.
Thus, partisanship is an integral part of party discipline. Political parties often lack internal democracy, such that the party leaders wield much more power and say over party functioning. To rise out of the Bermuda Triangle of party discipline, the structural measures in Parliament need to view individual MPs independent of their political affiliations when reading rules of procedure. This is done through special Fridays, which are called Private Member days.
Private Members' business is not just 'private'
The rules of procedure of both Houses of Parliament do not place the entire onus of legislative business on the Cabinet. Fridays in both Houses are allotted to 'Private Members' business', which means MPs who are not ministers can introduce bills and resolutions which can be passed like government business.
One good feature of this process is that the minister concerned is always present whenever a private member bill is taken up for discussion. The minister assures the member that the government shall bring in a bill on the same (assurances by a minister are binding and within the purview of the Privileges Committee).
Private Members' business was envisioned as a powerful tool in the hands of MPs, but the House has learned to bypass this too and of the 300 Private Members' Bills introduced in the 14th Lok Sabha, barely four percent were discussed. Till date, Parliament has passed only 15 Private Members' Bills.
The real reform lies in giving Private Members' business day the attention it deserves. Most MPs leave by Friday, and the government business through its legislative agenda takes up most of the time. One way to go forward would be to eliminate government business on private member days and also increase the upper limit of the number of private member bills that can be taken up for discussion in a session. Individual MPs in their apolitical capacity also need to build a consensus to not disrupt the House on Fridays, so that Private Members' business can be carried out.
Our Parliament has shades of bipartisanship, howsoever bleak
There is a morning ritual of obituary reference which is not generally disrupted even if the House is disrupted at all other times. The entire Lok Sabha unequivocally condemned the treatment meted out to Kulbhushan Jadhav’s family in Pakistan when Sushma Swaraj made a statement about it in the Winter session.
Then there was the grey area when a short duration discussion on Cyclone Ockhi took place: the House unanimously expressed regret, while simultaneously disagreeing on whether the Indian Meteorological Department had conveyed the warnings to the Kerala government on time. Likewise, during the farewell for Rajya Sabha MPs this Budget Session, the House adjourned on the day the farewell speeches were due, but moved beyond disruptions and let the farewell speeches proceed the next day.
The bottom line is: If consensus is possible for issues with less political disadvantage, it shows that partisanship is not an inherent trait, but one developed out of circumstantial propaganda. Thus, if politicians' interpretation of the political advantage of partisanship can be changed, it can promote bipartisanship by making them privy to the advantages of agreeing to agree over agreeing to disagree.
Misinterpreted partisanship: What our MPs think partisanship does vis-a-vis what it really does
We saw bipartisanship misconstrued by the ruling party during the Triple Talaq bill when Congress and all other parties lauded the principle behind the bill but contested it on the merits of whether it ought to be a criminal or a civil offence. Now the bill is at a standstill because the Opposition's demand for sending it to the Standing Committee was politicised as antagonism to the idea of the bill.
Partisanship either blocks initiatives or bulldozes them through the legislature. In either of these cases, constructive dialogue to put the best version of the policy forward is absent. In the long-term, this results in governments pushing reforms through a majority representation in the House or through the ordinance route. And both these scenarios result in successive opposition governments cork-stopping the reforms because no consensus was ever built on them. Who suffers? The economy, the social fabric, the guinea pig that has become of India.
Envisioning a bipartisan executive
The government in Switzerland, their executive body, is called the Federal Council. It is composed of seven Federal Councillors from several Swiss political parties, which are elected by the Federal Assembly every four years. The Councillors share the duties of a head of state head by rotation and every year one Councillor takes on the role of president.
The Swiss example shows that partisan executive wings in India are partisan for a reason: they gain power by outmanoeuvring their opponents through opinions compliant with the status quo. But when the compulsion of working cooperatively is the norm, abuse of power seems irrational to the decision-maker.
Thus, an ideal bipartisan executive reform in India would lie in changing the rationale behind ordinances, moving from an intention of bypassing Parliament to a need-based intention which can be ensured by understanding that the ordinance will be placed before the Parliament eventually when it resumes. For this, the Opposition needs to be roped in for contentious ordinances such as the Indian Forest (Amendment) Ordinance, 2017 that exempted bamboo in non-forest areas from the definition of a tree.
It also involves reforming the process of delegated legislation, wherein the executive has powers to frame rules under skeletal laws passed by the House. The process of drafting delegated legislation must require the government to reach out for suggestions to the Opposition and state governments beyond party lines, to ensure smooth compliance once the rules of the law are framed.
A good example is the Forest Rights Act (FRA) of 2006, for which the government notified rules in 2008. The rules were ineffective in extending benefits to tribals, and after receiving criticism the Ministry of Tribal Affairs made draft amendments to the rules and invited public comments. The final rules were notified in 2012 – six years after the Act was passed. A bipartisan process would have ensured time-bound implementation by making public and stakeholder inputs the predecessor to implementation.
The nature of Parliament will remain dynamic. Bad precedents are a result of unchecked dynamism, that is too focused on blame game to consider consensus building. In the end, if we are to produce long-term successful policies, we have to turn to bipartisanship to show us the way. Like Vice-President Venkaiah Naidu said, "All is not well that ends up in well". All is not well when "the ayes have it", and the nays don't matter.
The author is former LAMP Fellow and a graduate in applied psychology from Gargi College.
Updated Date: Jun 21, 2018 15:34 PM