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.
Turning a bill (legislative proposal) into an Act of Parliament (law of the land) is a multi-step process. It involves placing the bill before the legislature, readings of the bill, publication in the official gazette, possible reference to relevant committees of the legislature, debates, and concludes with present members voting on the bill. Voting can be done in multiple ways, one of which is a voice vote. In the voice vote system, the members verbally communicate their assent by shouting 'Aye', or dissent by shouting 'No'. Based on which answer is most audible, the Speaker (person chairing the legislature) decides the outcome of the bill. The system of voice votes is obsolete. It slows down legislatures, grants excessive discretion to the Speaker, reduces the ability of citizens to hold their legislators accountable. And it is still used in India.
For example, the Finance Act, 2018, was controversially passed by the Lok Sabha, through a voice vote. In 2017, the Punjab Assembly passed the Vote-on-Account of more than Rs 251,990 million for the first quarter of the 2017-18 fiscal by a voice vote. In 2016, the Taxation Laws (2nd Amendment) Act 2016 was passed through a voice vote, amidst protests and demonstrations. In 2014, Opposition parties in Maharashtra questioned the legitimacy of the government after a confidence motion was decided in the government's favour through a voice vote. In the same year, the Lok Sabha Speaker was criticised for passing the Telangana Bill through a voice vote (Note: In this blog, we use the term 'Speaker' generically, for the Speaker of the Lok Sabha, the Chairman of the Rajya Sabha, the Speakers of state legislative Assemblies, and Chairman of state legislative councils).
The Constitution leaves it to each house of legislature to set the rules of functioning of that house. Articles 118 and 208 of the Constitution empower the Houses of Parliament and state legislatures to make rules governing procedure, respectively. Lok Sabha and Rajya Sabha have made Rules of Procedure and Conduct of Business (Procedure Rules) for their respective houses.Voting in the Lok Sabha is governed by rules 367, 367A, 367AA and 367B of the Lok Sabha Procedure Rules.
On the conclusion of a debate, the Speaker asks the members present whether a bill or a motion is passed. The members respond through a voice vote. The Speaker then decides whether the motion is accepted or rejected. If a member challenges the Speaker's decision, the Speaker repeats the voice vote process for a second time. Any member can challenge the second voice vote by requesting for a division. The Speaker has the discretion to reject or grant the request for a division. If the Speaker rejects the demand for division, parliament employees take a head-count of members voting 'Aye' and members voting 'No'. Based on this head-count, the Speaker announces whether the motion is accepted or rejected. This decision cannot be challenged.
If the Speaker accepts the demand for division, he or she orders for voting by any one of the following three methods, at his or her discretion:
1. Automatic Vote Recorders: Members press a button to vote 'Aye' or 'No' from their allocated seats. The result appears on an electronic display, and the Speaker announces whether a motion is accepted or rejected.
2. Paper Slips: Members write 'Aye' or 'No' on paper voting-slips. Parliament officers collect the slips and count the votes. The Speaker announces whether a motion is accepted or rejected.
3. Division Lobbies: The Speaker directs members voting 'Aye' to go to the right lobby, and those voting 'No' to go to the left lobby. Parliament officers count members in each lobby. The Speaker then announces whether a motion is accepted or rejected.
The Rajya Sabha and state legislatures follow a similar process with minor variations. In no case are individual voting records maintained. Even when a division is carried out, only the total number of votes for and against the motion are recorded.
The system of voice votes suffers from two weaknesses: It grants excessive discretion to the Speaker, and it reduces accountability of legislators to the citizens.
Speakers' excessive discretion
The discretionary power vested with the Speakers in a voice vote system is prone to abuse. In the Indian system, Speakers are inclined to side with the ruling party or alliance. Speakers of Lok Sabha and State Legislative Assemblies are elected from among the members of their respective legislatures, usually from the ruling party or alliance. Unlike in the UK, they continue to be members of their parties even after being elected as the Speaker.
The Maharashtra Assembly no-confidence vote in 2014 is an example of alleged abuse of discretionary power by the speaker. The Maharashtra Assembly Speaker approved the confidence motion in favour of the present ruling party. The motion was approved through a voice vote, amongst allegations that the demand for division by the Opposition was ignored. Effectively, it cast doubt on whether the government truly had a majority in the house.
According to the Parliament's Statistical Handbook 2014, five incidents of no-confidence motions and three incidents of confidence motions have been decided through a voice vote in Lok Sabha. While there has been no allegation of abuse in these cases, a voice-vote system can be easily manipulated, especially when it is used to determine crucial issues like the legitimacy of the ruling party.
Accountability to citizens
The voice vote system lacks transparency. In a voice vote system, it is impossible to record individual votes of legislators. In the absence of individual voting records, a citizen has no way of judging the actions of his representatives. He or she is clueless about which way his or her elected representative voted, or whether that representative voted at all. This makes it difficult for the public to hold their representatives responsible.
An example of accountability using public voting records is Obama's criticism of Hillary Clinton, in the 2008 Democratic Party Primaries. In 2002, the then Senator Hillary Clinton voted in favour of the resolution to invade Iraq. By the 2008 primaries, public opinion (especially in the Democratic Party) had turned against the invasion. Obama repeatedly pointed out that Clinton voted in favour of the Iraq war, signalling to the Democratic Party that he is a better candidate. Obama could do this because each senator's vote on each resolution is recorded against their name and published.
Solution: Electronic voting
In the past, recording votes for each motion would have been time-consuming and costly. So, recorded votes would be reserved only for contentious issues. If the support or dissent for a motion was evident, it was left to a quick decision of the Speaker. The cost of this efficiency was wide discretion to the speaker. Today, with electronic systems, we can gain this efficiency with no costs.
As the following examples show, electronic voting is a time-tested, efficient and, cheap technology:
• Time-tested: Machine vote recording systems are not new; Thomas Edison patented a system in 1869. The World e-Parliament Report 2016 states that 67 percent of parliaments have adopted some form of electronic voting. Out of the remainder that still vote manually, 72 percent are considering to introduce electronic systems. The US House of Representatives has been using electronic voting systems since 1973. Recently, the Korean National Assembly adopted an electronic voting system.
• Efficient: A 2016 Australian Parliamentary report found that adopting electronic voting systems reduces the time spent on counting votes, minimises human error, and expedites publication of results. A 2010 report to the UK House of Commons found that electronic voting can make the process less time-consuming. This, in turn, allowed MPs to devote more time to discussion and debate, the real function of legislatures. A 2003 Australian Parliamentary report finds that conducting a division vote in the Mexican Legislature used to take up to one hour; with the electronic voting system it now takes two minutes.
• Cheap: The Mexican Legislature, with more than 500 members, has been using biometric authenticated electronic voting since 1998. The 2003 Australian Parliamentary report finds that the Mexican Legislature's electronic voting system has an operating cost equivalent to INR 54 million per year (at 2016 prices). For perspective, that is 0.86 percent of the total budget of the Lok Sabha for 2016-17.
Electronic voting systems are not alien to the Indian Parliament (the one in Rajya Sabha was installed in 1957). However, they are only used in case of a division. This means going through the process of two voice votes, calling for division, granting division, and then conducting a division. Even then, the decision to use electronic voting is subject to the Speaker's discretion. He or she can choose other inefficient methods like paper slips or the lobby method to reach a conclusion.
Ushering in transparency
The first step towards recording individual legislators' votes is by replacing voice votes with electronic voting systems. Carey, 2005, finds that when countries adopt electronic voting systems, demand for recording individual votes grows. Once the usage of recorded vote starts, pressure to make these records visible increases. An EU Parliament study of EU countries, where individual votes are recorded, finds electronic voting to be the most popular method.
The Indian electorate has been criticised for voting on caste/communal lines. However, in the absence of information regarding legislators' actions in the legislature, there is no other parameter for the average citizen to decide whom to vote for. Bovitz and Carson, 2006, conducted a study examining the electoral consequences of individual voting records of legislators in the US House of Representatives. They found that legislators who vote against their constituents' preferences on controversial and politically prominent issues get lower vote shares in subsequent elections. Conversely, when legislators vote according to their constituents' preferences, especially against the party-line, they get higher vote shares. Legislators tend to vote strategically on prominent issues as they worry about taking the 'wrong' position in the eyes of their constituents.
Unlike the US, Indian legislators are subject to anti-defection laws. An Indian legislator cannot ignore a 'party whip/instruction' without risking losing his seat. It may be argued that, in the Indian scenario, individual voting records are useless. This argument has two weaknesses, namely that it:
1. Contradicts the general principle of governance, that greater transparency in the working of government brings greater efficiency. It does so without providing any evidence for it.
2. Ignores that once votes are made public the equilibrium shifts and individual voting records may act as a counter-balance to the negative aspects of anti-defection law.
We should always strive for greater transparency in governance. India still follows the Westminster system with people voting for individual legislators to represent them. On one hand, even if this information is useless, it does not harm anyone. On the other hand, when citizens get more information about their legislators, they can make more informed decisions. For example, merely because some candidates with criminal backgrounds are elected, does not mean we should stop requiring candidates to declare their criminal records.
In addition, there are situations where anti-defection laws do not apply. In such cases, this information can help voters. Anti-defection laws do not affect legislators who do not vote or when there is no formal party whip. In such cases, individual voting records will provide valuable information about a legislator's behaviour. Did your legislator actually vote on a bill that was important to you or was he or she absent? It forces legislators to at least participate in issues important to their electorate and turn up to vote. Carey, 2009 examines the Corruption Perceptions Index, calculated by Transparency International, for most countries in the world. He finds that perceptions of corruption tend to be lower in countries where legislative votes are visible.
It may act as a counterbalance to anti-defection. Anti-defection laws have been criticised for reducing the voice of legislators. It puts party interests above the interests of the electorate. However, today, the costs on the legislators following the 'party whip' and consequently harming his electorate is nil. Individual voting records may act as a counterbalance to this problem. Just like anti-defection puts pressure on legislators to vote in favour of the 'party whip', some studies show that individual voting records put pressure on legislators to vote in accordance with the wishes of the electorate.
Canes-Wrone et al., 2002 examined, through a study of the US elections between 1956 and 1996, the relationship between legislators' electoral performance and support for their party inside the legislature. Their study shows that in each election, an incumbent received a lower vote share when he supported his party. It also decreases the probability of retaining office. Crespin, 2010 finds that where votes are more likely to be noticed by the public, members of the US Congress adjust their votes in line with the demands of their constituency.
It is simplistic to argue that bringing transparency in individual voting records will not change the incentives/behaviour of legislators. Once individual voting records are available, the legislator will have two choices. First, vote against the decision of the party and get disqualified but, on the other hand, gain sympathy of the electorate. This may translate into more votes in the next election/by-election. The legislator can run as an independent candidate or on another party ticket and gain sympathy votes. Second, vote in accordance with the party line and hold on to his seat. However, now the entire electorate is likely to know he voted against their interest. The next election may not be in his favour.
We need to overhaul the functioning of the Parliament. Adopting compulsory electronic voting in our legislative bodies is a low-hanging fruit. It requires a small change in the Parliamentary procedure rules and trivial technological additions. This small change can go a long way in increasing efficiency, accountability and transparency in the functioning of the legislature.
The authors are researchers at the National Institute of Public Finance and Policy. An earlier version of this blog was published on Ajay Shah’s blog.
Updated Date: Jun 21, 2018 15:36 PM