This series on the Parliament was published following the
stasis in functioning of the two Houses the last time they were in
session. We've reproduced it ahead of the Monsoon sitting, which begins
on 18 July.
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,
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.
The recent Budget Session of Parliament was the least productive in over a decade. PTI
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
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
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.
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
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
The author is co-founder and president of PRS Legislative Research.