Will Indian democracy wither? Parliament witnessing supremacy of Executive in democratic Constitution's clothing

Last week, Member of Parliament in the Rajya Sabha, Derek O' Brien tweeted these stats about Parliamentary Committees:

What is Derek O'Brien talking about?

Upon being introduced in the Lok Sabha, Bills are referred to Standing Committees for a deeper analysis. Standing Committees, appointed for a period of a year, mirror the composition of the Parliament with up to 21 members from the Lok Sabha and 10 from the Rajya Sabha. They thus represent divergent interests. Ministers — or members of the Council of Ministers responsible for formulating the Bill — cannot be nominated onto such Committees, to ensure a fresh and unbiased study of the Bill is carried out. Under the present government, only seven of 76 passed Bills were referred to Standing Committees.

Bills can also be referred to ad hoc Committees — Select Committees or Joint Committees of the Houses - which are appointed for a limited duration with the task of scrutinising a particular Bill. Unlike in Standing Committees, ad hoc Committees don't have a cap on the number of members who can be appointed. They also do not have a bar on ministers being appointed to such committees. Under this government, two Bills were referred to Joint Committees of the Houses, while three others were referred to Select Committees constituted by the Rajya Sabha, after they had been passed in the Lok Sabha. No Bills were referred to Select Committees constituted by the Lok Sabha.

Of the 76 Bills passed by both Houses, a total of 12 Bills had been scrutinised by some Committee.

Laws of great complexity such as the National Judicial Appointments Commission Act, 2014, the Insolvency and Bankruptcy Code Amendment Act, 2018, the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, as well as laws with far-reaching consequences such as the Atomic Energy (Amendment) Act, 2015, the Citizenship (Amendment) Act, 2015, the Lokpal and Lokayuktas (Amendment) Act, 2016 and the Collection of Statistics (Amendment) Act, 2017 have been passed without referral to any Committee.

One might ask why the lack of Committees is "murdering Parliament", especially when these laws were duly passed by Parliament. After all, basic lessons in Civics classes taught us that we are a democracy because we elect representatives to Parliament who pass laws. The "executive" wing of government has to merely 'execute' or implement the law.

There is more to this story.

Are all our laws democratically enacted?

The short answer is 'not really'.

In the Indian democratic model, the executive does execute laws through its officers in the administrative, tax, railway, police and other services. However, the executive also formulates policy — either as schemes or drafted as Bills — through the Council of Ministers comprising the Union Cabinet, Ministers of State and sometimes Parliamentary Secretaries.

The Council of Ministers is collectively responsible to the Lok Sabha. This is because they must enjoy the confidence of the representatives elected by the people, in order for their policies to acquire the status of binding law. The Lok Sabha, in particular, is supposed to check the bills formulated by the Council of Ministers to ensure that they represent the will of the people. Only then can the Lok Sabha pass the Bills.

File image of Parliament building. PTI

File image of Parliament building. PTI

That the Lok Sabha has passed a Bill does not, of itself, imply that the Council of Ministers has discharged its collective responsibility to the Sabha, or the people. In governments such as the present one, the Union Cabinet enjoys a majority in the Lok Sabha, and thus significantly controls both the legislative and the executive wings of government. Therefore, policies formulated by the Council of Ministers can easily be legislated into Bills which are passed in the Lok Sabha, sometimes without debate, by the sheer strength of numbers of the party in power. This explains why Bills once passed in the Lok Sabha, get referred to Select Committees constituted by the Rajya Sabha.

The Committee system is therefore crucial in ensuring that Bills are analysed in a way that does justice to their complexity and the larger eco-system of laws they will fit into. Crucially, in analysing Bills, members of Committees do not have to worry about making recommendations in keeping with their party's stance on the issue. MPs are able to use their independent expertise as well as consider the interests of the people at large in analysing Bills in Committees.

MPs can also file dissent notes on issues in the Bill or in the Committee Report. Since these Reports do not document the names of members against their specific contributions, MPs who do not toe the party line do not have to fear being disqualified from the House - a factor that significantly limits their discretion on the floor of the House. Moreover, Committees conduct their business behind closed-door thus facilitating a free exchange of opinions of the members. Lastly, Committees also consult other persons for their comments on Bills referred to them.

While the Ad-Hoc Committees and Standing Committees can consult experts and stakeholders, Standing Committees can also elicit public opinion.

When Bills are not referred to Committees, the ruling party controls not only the formulation of the policy in the Union Cabinet but also the passing of the Bill in the Lok Sabha. This is why Bills can be passed within minutes, by sheer force of numbers, without engaging in any debate, as has been the case in the ongoing Budget Session.

No doubt, the Bill does not acquire the status of law unless the Rajya Sabha also passes it; the Rajya Sabha would, in fact, be well within its powers to vote against a Bill. However, if the Rajya Sabha proposes amendments to a Bill it is otherwise in agreement with, they become part of the final law only if the Lok Sabha also agrees to them. This means the ruling party enjoying a majority in the Lok Sabha can reject the Rajya Sabha's proposed amendments if it likes the original version of the Bill more.

Worse still, when the Bill is a Money Bill, as the Aadhaar (Targeted Delivery of Financial & Other Subsidies, Benefits & Services) Act, 2016 was, the Rajya Sabha enjoys even lesser powers. If the Rajya Sabha chooses not to pass a Money Bill within two weeks of receiving it, or if it proposes amendments to the Bill that are not acceptable to the Lok Sabha, the Bill becomes law anyway.

In short, a handful of Ministers in the Union Cabinet get to decide what shall be the law for an entire nation of a billion people.

What we have today is the supremacy of the executive in a democratic Constitution's clothing. High school civics may have been simplistic, but it certainly was not wrong in teaching us that India's is a democratic government because a Parliament elected by citizens enacts laws.

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Updated Date: Mar 26, 2018 14:44:46 IST

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