27th March 2021 – Editorials/Opinions Analyses

Contents

1. Dormant Parliament, fading business

DORMANT PARLIAMENT, FADING BUSINESS

Context:

The Budget session of Parliament ended two weeks ahead of the original plan, as many political leaders are busy with campaigning for the forthcoming State Assembly elections.

Relevance:

GS-II: Polity and Governance (Constitutional Provisions, Legislature and Elections, Executive, Separation of Powers)

Mains Questions:

How far can deterioration in the Parliament’s functioning be attributed to political campaigns during the sessions and disruptions due to disagreements? What are the reforms required for the Parliament to fulfil its constitutional mandate effectively? (15 Marks)

Dimensions of the Article:

1. What is the Parliament?
2. Important functions of Parliament
3. Causes of deterioration of functioning of the Parliament:
   • Anti-Defection law
   • Campaign during session
   • Disruptions
   • Role of Media
   • Money Bill classification
4. Measures to improve functioning of the Parliament
5. Conclusion

About the Indian Parliament

• The Indian Parliament is the legislative organ of the Union government, consisting of three parts viz, the President, the Council of States (Rajya Sabha/Upper House) and the House of the People (Lok Sabha/Lower House).
• Thus, India has a system of Bicameral Legislature where the Rajya Sabha (RS) represents states and union territories and the Lok Sabha (LS) represents the People of India as a whole.
• The framers of our Constitution relied on the British pattern rather than the American pattern for our Parliament – as the British Parliament consists of the Crown (King or Queen), the House of Lords (Upper House) and the House of Commons (Lower House), whereas in the U.S. the legislature, which is known as Congress, consists of the Senate (Upper House) and the House of Representatives (Lower House) and the President is not an integral part of the legislature.

Functions of Parliament

Legislative Functions

The Parliament can make laws on all the subjects listed under Union List and the Concurrent List in the 7^th Schedule of the Constitution.

The Parliament can also pass laws on items in the State List under the following circumstances:

1. When National Emergency is in operation (Article 352)
2. For that/those state(s) if any state(s) is/are placed under President’s Rule (Article 356).
3. If the Rajya Sabha passes a resolution by ⅔ majority of its members present and voting (Article 249).
4. if it is required for the implementation of international agreements or treaties with foreign powers (Article 253).
5. If the legislatures of two or more states pass a resolution to the effect that it is desirable to have a parliamentary law on any item listed in the State List, the Parliament can make laws for those states (Article 252).

The Parliament has the power to amend the Constitution of India. Both Houses of the Parliament have equal powers as far as amending the Constitution is concerned.

• The Parliament has the power to alter, decrease or increase the boundaries of states/UTs.
• The Parliament takes part in the election of the President and the Vice President.

Control over the Executive

• As the Executive is responsible to the Legislature (Lok Sabha in the case of India), in a parliamentary form of government – the Legislature’s control over the executive is exercised by:
• The Parliament (Lok Sabha) can remove the Executive out of power by passing a Motion of No-Confidence.
• The Members of the Parliament (Legislators) of both the houses can ask questions to the ministers on their omissions and commissions which will help in exposing any lapses on the part of the government.
• In the Lok Sabha, an Adjournment Motion can be used as an extraordinary tool to draw the attention of the Parliament to any recent issue of urgent public interest.
• The Parliament appoints a Committee on Ministerial Assurances that sees whether the promises made by the ministers to the Parliament are fulfilled or not.
• In the Lok Sabha, a Censure motion can be passed by the opposition to strongly disapprove any policy of the government. (However, unlike in the case of the no-confidence motion, the Council of Ministers need not resign if the censure motion is passed.)
• A Cut Motion can also be used to oppose any demand in the financial bill brought by the government.
• Issues of national and international importance are discussed in the Parliament. The opposition plays an important role in this regard and ensures that the country is aware of alternate viewpoints.

Financial Functions

• The Union Budget prepared by the Cabinet is submitted for approval by the Parliament. All proposals to impose taxes should also be approved by the Parliament.
• There are two standing committees (Public Accounts Committee and Estimates Committee) of the Parliament to keep a check on how the executive spends the money granted to it by the legislature. You can also read on parliamentary committees.

Judicial Functions

• In case of breach of privilege by members of the House, the Parliament has punitive powers to punish them. A breach of privilege is when there is an infringement of any of the privileges enjoyed by the MPs.
• In the parliamentary system, legislative privileges are immune to judicial control.
• The power of the Parliament to punish its members is also generally not subject to judicial review.
• Apart from this the, the Parliament also has the power to impeach the President, the Vice President, the judges of the Supreme Court, High Courts, Auditor-General, etc.

Issue: Politicization of Anti-Defection Law

• The Anti-defection law (Tenth Schedule of the Constitution) states that the Speaker/Chairman of the legislature is the final authority to decide on the disqualification of a legislator.
• Although anti-defection law seeks to provide a stable government by ensuring the legislators do not switch sides, this law also enforces a restriction on legislators from voting in line with their conscience, judgement and interests of his electorate.
• The anti-defection law impedes the oversight function of the legislature over the government, by ensuring that members vote based on the decisions taken by the party leadership.
• However, the role of the presiding officers has become increasingly politicized. Thereby creating doubts over Speaker’s role vis-à-vis anti-defection law being biased, as recently seen in the Karnataka political crisis.
• As per Anti-defection law, the legislators have to vote as per party whip.
• Due to this, legislators are compelled to vote on party lines irrespective of their local or regional interest. This has narrowed scope of democracy dissent and divergent views.
• It can be said that, the Anti-Defection Law has created a democracy of parties and numbers in India, rather than a democracy of debate and discussion.

Issue: Frequent Campaigning for Elections during sessions

• India is a Union of 28 states, thereby putting India in a continuous cycle of Lok Sabha and State Legislative Elections.
• The frequent elections lead to massive expenditure and policy paralysis (due to imposition of the Model Code of Conduct during election time).
• Campaigning duties of the elected members is one of the reasons behind premature ending of sessions. There is also the emphasis on having to play the balancing act when it comes to speeches during campaigns and enacting and discussing legislations.

Issue: Frequent Disruptions

• The Speaker of Lok Sabha and the chairman of Rajya Sabha routinely ask the members who rush into the well to return to their seats, but if the members do not heed their pleas, the House is adjourned.
• This kind of behaviour by MPs, and the reaction of the House’s presiding officers often leads to an increase in the inefficiency of the functioning of the house.
• The speaker is endowed with enormous powers to enforce discipline; however, the speaker may choose not to use the measures and this lack of enforcement of rules makes the rulebook irrelevant, and gives the impression that any group of MPs can hold Parliament to ransom.

Issue: Deterioration of Parliamentary Scrutiny

• In 1933, the concept of Department-related Standing Committees was introduced to ensure that Parliament discharges its law-making responsibilities effectively. These committees are meant to scrutinize legislation pertaining to specific Ministries.
• However, recently a majority of the bills were passed by the Parliament through a voice vote, without much debating and without referring them to the parliamentary committees.
• The percentage of Bills referred to committees declined from 60% and 71% in the 14th Lok Sabha (2004-09) and the 15th Lok Sabha, respectively, to 27% in the 16th Lok Sabha and just 11% in the current one.
• For example, RTI Amendment Act (2019), UAPA Amendment Act (2019) – which have huge implications on civil liberties, were passed without referring them to the Parliamentary committee.

Issue: Role of Media in the Law-making process

• Media usually refers to mass media, which is any medium that provides citizens with information regarding all the current affairs of any area at a large scale.
• Traditionally and constitutionally, the media has no defined role in governance, however, media plays one of the most important roles in the functioning of any society as it amplifies the voice of citizens and communicates their opinions to the lawmakers.
• If media is to have any meaningful role in democracy and governance it must be free and independent from the control of government, however, when such a requirement is abridged the legislature if affected as well.

Issue: Classification of Money bills affecting legislation

• A Bill is said to be a Money Bill if it only contains provisions related to taxation, borrowing of money by the government, expenditure from or receipt to the Consolidated Fund of India. Bills that only contain provisions that are incidental to these matters would also be regarded as Money Bills.
• Article 110(1) grants the Lok Sabha Speaker with the authority to certify a draft law as a money bill so long as such legislation deals only with all or any of the matters specifically listed in the provision and his decision cannot be questioned and is beyond judicial review.
• An immunity from judicial scrutiny would effectively allow the government to elude the Rajya Sabha’s constitutional checks by simply having the Speaker classify a draft law as a money bill regardless of whether it, in fact, meets the conditions stipulated in Article 110(1) or not.
• Money bills exist simply to ensure that the Rajya Sabha isn’t allowed to bring down a government by refusing it access to the exchequer for everyday governance.

Issue: Parliamentary Privileges Curbing Freedom of Speech

• Parliamentary privileges under Article 105, are sometimes used to curb freedom of the press through Strategic lawsuit against public participation (SLAPP).
• A SLAPP is a lawsuit that is intended to censor, intimidate, and silence press in the name of parliamentary privileges.

Issue: A Weakened Opposition in India

• Democracy works on the principle of checks and balances. It is these checks and balances that prevent democracy from turning into majoritarianism.
• In Parliamentary system, these checks and balances are provided by the opposition party.
• However, the majority of a single party in the Lok Sabha has diminished the role of an effective opposition in the Parliament.

Way-Forwards

• Several experts have suggested that the Anti-defection law should be valid only for those votes that determine the stability of the government. e.g., passage of the annual budget or no-confidence motions.
• Various commissions including National Commission to review the working of the constitution (NCRWC) have recommended that rather than the Presiding Officer, the decision to disqualify a member should be made by the President (in case of MPs) or the Governor (in case of MLAs) on the advice of the Election Commission.
• A detailed framework for pre and post Legislative Impact Assessment is needed. Every legislative proposal must incorporate a detailed account of social, economic, environmental and administrative impact for wider awareness and subsequent legal assessment. A new Legislation Committee of Parliament to oversee and coordinate legislative planning can be constituted.
• Measures for the effective functioning of Department Related Standing Committees like longer tenure (instead of the present one year), promoting specialization, etc ,are needed.
• Instead of just looking at the issue of disruptions in isolation, there is a need to take a fresh look at the multiple roles of Parliament, the changes in the internal make-up of Parliament, the changes in India’s external environment, and the changes in citizens’ expectations from their representatives.
• To use Money bills as a means to nullify the Upper House’s democratic role in making substantive legislation undermines the Constitutional form which Ambedkar and the Constituent Assembly envisaged.
• Meanwhile the finality accorded to the speaker’s decision in assigning Money bill too cannot be ousted from the court’s jurisdiction as the Supreme Court has repeatedly held that Judicial Review is a part of Basic Structure Doctrine and it is the constitutional duty of the Supreme Court and the High Courts to review governmental actions, and issue prerogative writs. It is imperative that Supreme Court continues to provide a sense of sanctity to the Constitution’s carefully structured arrangements so that smooth functioning in governance can be realised.

Conclusion

• Parliament has the central role in our democracy as the representative body that checks the work of the government.
• It is also expected to examine all legislative proposals in detail, understand their nuances and implications of the provisions, and decide on the appropriate way forward.
• In order to fulfil its constitutional mandate, it is imperative that Parliament functions effectively.
• This will require making and following processes such as creating a system of research support to Members of Parliament, providing sufficient time for MPs to examine issues, and requiring that all Bills and budgets are examined by committees and public feedback is taken.
• In sum, Parliament needs to ensure sufficient scrutiny over the proposals and actions of the government.

-Source: The Hindu