Confusion between primary and incidental function at the root of the disorder and waste of resources
Shreehari Aney | January 6, 2020
Three points of common perception emerge when we talk of interruptions of parliamentary proceedings: first, the interruption is waste of public time and money; second, it results in failure on the part of our elected representatives to perform their constitutional function as members of parliament; and third, that every interruption is an abuse of power by the members directly destructive of our democracy.
The reality is that each of these three points of common perceptions is valid and correct. In order to understand the truth of these perceptions, it is necessary to first understand the scope of the function of the parliament, and to see the exact role that each of its members is expected to perform.
The Indian constitution envisages the governance of the country through three wings, sometimes referred to as the three pillars of government: the Executive, the Legislature and the Judiciary. Each of these wings functions in its clearly demarcated area. Although the business of the Executive is to administer, the Parliament is to legislate, and the Judiciary is to settle disputes, there is undoubtedly some overlapping of functions. For example, in addition to its primary function to legislate, the Parliament also performs a necessary incidental function of imposing checks and ensuring accountability of the Executive government. Similarly, while it is the primary function of the Executive to frame policy and to govern, its incidental function is to forge laws in the nature of subordinate legislation necessary for implementation of policy or day-to-day governance. The Judiciary too while performing its primary function of settlement of disputes, is often seen to extend its function the garb of judicial activism, to framing of rules, fashioning policy and at times even to supervising execution. All three wings understand this overlapping and tolerate the encroachment.
In keeping with the oath prescribed under Article 99 of the Constitution, every MP is called upon to faithfully discharge the duty upon which he is about to enter. The root cause of interruptions in the parliament results from a confusion of the primary function of enactment of laws and the incidental function of ensuring accountability of the ruling government. Our MPs confuse their prioritising of the primary function to legislate, and give precedence to the secondary function of monitoring, resulting in spending the time earmarked for the work of legislating on trying to impose accountability in governance. The government, so confronted, takes the classic stance of fighting the opposition, adding to further waste of time. Both the treasury and the opposition benches lose sight of the priority of their primary function. The result is that one entire wing of our democracy labours under a self-imposed handicap while performing its constitutional and democratic function.
The first and second UPA governments from April 2004 to May 2009 and from May 2009 to May 2014 passed 92 Acts while the NDA government from May 2014 to May 2019, and from May 2019 till today has pass 46 Acts. The total Acts passed from 2004 till today is 142, which makes it an average of less than 10 Acts a year. Considering there are three sessions of parliament each year, it means that parliament passed a little over three Acts in each session. So much for the primary function of the MPs. The rest of the time was spent in sabre-rattling.
We follow the Westminster model, which means that except for the Money Bill introduced in each budget session by the finance minister, all laws to be passed by parliament are subjected to extensive workout in the form of scrutiny, drafting, amendments and debate before various committees. There are two kinds of parliamentary committees: ad-hoc committees and the standing committees. Ad-hoc committees are for specific purpose and stand dissolved when they finish their task. These include the select and joint committees constituted to consider Bills that are placed before parliament, and have members from the treasury and opposition. They debate the Bills clause by clause, and propose modifications. Thus, for all practical purposes, when a Bill comes before the parliament, it has already been whetted and, if supported by majority, only remains to be passed. The Bill can, and certainly should be, debated by the house, but in view of the rigorous workout before the aforesaid committees, except for a very few controversial Bills, most can and should be passed without time consuming debate. This entire exercise of parliament right from the drafting stage to the passing of the Bill into Law can be labelled as the primary function of parliament.
The incidental function of parliament of exercising control over the Executive functions of government is also taken care of by the various standing committees. Consider the “watchdog” committees. For instance, the committee on estimates reports what economies, improvements in organisation, efficiency, or administrative reform should be done, and suggests alternative policies in order to bring about efficiency and economy in administration. The committee on public undertakings examines the reports and accounts of public undertakings, the reports of the Comptroller and Auditor General on the public undertakings and considers whether the affairs of the public undertakings are being managed in accordance with sound business principles and prudent commercial practices. The Lok Sabha committee on private members’ bills and resolutions examines private members’ bills including those seeking to amend the constitution before their introduction in Lok Sabha, or where the legislative competence of the house is challenged. The Lok Sabha committee of petitions reports on petitions presented to the house. It also considers representations from individuals and associations, etc. and gives directions for their disposal. The Lok Sabha committee on papers laid on the table examines all papers laid on the table of the house by ministers and reports to the house whether there has been compliance of the provisions of the Constitution, Acts, rules or regulations under which the paper has been laid, whether there has been any unreasonable delay in laying the paper, and whether the reasons explaining the delay are satisfactory. The Lok Sabha committee on government assurances scrutinises the assurances, promises, undertakings etc. given by ministers from time to time and reports to Lok Sabha on the extent to which such assurances etc. have been implemented, and whether such implementation has taken place within the minimum time necessary.
Besides these “watchdog” committees, there exists a full-fledged system of 17 department-related standing committees covering all the ministries/departments of the government of India including committees on commerce, home affairs, human resource development, industry, science & technology, environment and forests, transport, culture and tourism, agriculture, information technology, defence, energy, external affairs, finance, food, civil supplies and public distribution, labour and welfare, petroleum and chemicals, railways, and urban and rural development. Thus, every wing of the Executive government is subject to some scrutiny and accountability by parliament. Every MP therefore has ample opportunity of monitoring the Executive government’s actions, and even influencing governmental policy if he chooses to participate in the standing committees’ deliberations.
In spite of this extensive legwork that has gone into the working of parliament only 142 Acts were passed in 15 years. This abysmal performance is because of the enormous time spent in disruptions which are now raised to the status of necessary and indispensable parliamentary process. As between the ad-hoc and standing committees, the parliament has devised a complete machinery which the MPs may utilise to fulfil their primary and incidental functions. Thus, within the existing framework of parliamentary practice and precedent, every MP can raise issues of national importance before a forum created precisely for this purpose, and no MP is required to resort to disrupting the parliament.
It is possible that certain issues and developments may not be satisfactorily resolved through the established parliamentary processes, or need to be urgently brought before the house in Zero Hour. These may derail the normal working of the parliament and giving them benefit of doubt, the MPs should resort to interruptions as rare exception of last resort and never a first step.
Every day more than Rs 170 crore is estimated to be spent on the parliamentary session. With each day’s interruption, this amount is totally wasted. In our parliament, unfortunately, the opposition has chosen only one strategy for demanding accountability – disruption and disorder. For more than a decade, it has become commonplace for the opposition to disrupt parliament for no reason except to embarrass the government. Unfortunately, the MPs feel that they were actually doing their job. Most MPs see preventing normal parliamentary functioning as a legitimate means by which the government is rendered accountable.
It is difficult to understand why the parliament must make it its primary business to ensure that the Executive government is accountable. Such incidental function aught not be performed at the cost of its primary function. It makes no sense for the MPs to say that “we will make the government accountable by not passing any laws”.
Also, the behaviour of the MPs in interrupting the parliament is comparable to Arvind Kejriwal, as Delhi’s Chief Minister, sitting on a dharna. Instead of speaking to the union government sitting in the CM’s chair, he chose to sit on the road in a dharna. The mirror opposite applies to the MPs. They would be right in demanding accountability by raising their voice on the streets, by mobilising public opinion, by leading mass protests; but not by disrupting the parliament.
It must be understood that this practice of disruption is changing the very character of the parliament. If the trend continues, the parliament will no longer be seen as a body intended for making laws. It will be seen as a forum for voicing protests. Over time, the primary function of the parliament will be rendered redundant, or merely ceremonial, while the incidental function of raising protest to bring about accountability will be considered paramount.
The feared consequence is that the government will no longer rely on the parliament to frame laws. It will be content to reduce the parliament to a forum for protests, so long as it can continue unhindered function. From the very beginning to today, we have a history where the primacy of the parliament is steadily eroded. While this weakening of parliamentary democracy is bad enough, what is worse is that the primary function of the parliament to make laws is taken over by the Executive government by going through the ordinance route under Article 123 of the Constitution. As soon as the parliament’s session is over, the council of ministers advises the president of India to promulgate an ordinance to enact the law that it wants. Short lived that such laws may be, they are often tailored to suit the ruling party’s interests, and passed without a debate. Save and except a challenge to the constitutional validity of such ordinances, they usually eventually become law of the land.
If it is not to the Executive government, then it is to the Judiciary that the parliament loses its legislative function. Judicial activism has now evolved to a point where the Supreme Court and High Courts have become a legislative forum. On August 28, 2019, after a meeting attended by the speakers of state legislative assemblies, speaker of the Lok Sabha Om Birla announced that there was universal agreement to frame a code of conduct to ensure smooth proceedings in the legislative houses. On December 18, 2019, in a follow-up meeting at Dehradun, the Rajya Sabha deputy chairman, Harivansh, said that a “Parliamentary Disruption Index” should be established to monitor disruptions, as would help deter instances of indiscipline and make time for debate in the house. The speakers from 18 states including West Bengal, Kerala, Rajasthan, Odisha, Gujarat, Sikkim and Tripura who attended the conference discussed the capacity building and training for members to decrease disruptions and improve their functioning, improve the quality of debates in the house, as well as the need to develop a “code of conduct” for members, especially such practices as entering and protesting in the well of the house, the need for uniformity in rules of procedure and conduct of business, the need to increase the sittings of state legislatures, as well as the need for media to cover positive debates.
Perhaps there is light at the end of the tunnel.
Shreehari Aney is a former advocate general of Maharashtra.
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