- Dhruva Gandhi & Unnati Ghia*
These are interesting times. In what has been welcomed as a pleasant departure from the usual policy paralysis, both houses of the Indian Parliament have performed with prodigious efficiency to pass the largest number of bills in decades.[1] At first blush, this seems to be evidence of a well-functioning democracy, but when we look beyond the surface a different picture emerges. A legislation as historic and lengthy as the J&K Reorganisation Act was pushed through both houses in a matter of hours[2] and a bill to increase the number of judges in the Supreme Court was passed without deliberation as a Money Bill.[3] The controversial Transgender Rights Bill which requires transgender persons to procure an identity certificate was passed in the Lok Sabha on the same day as its introduction.[4] Amid rising concerns regarding the quality of legislation and the political implications of such creation of laws, we argue that this trend raises some serious red-flags vis-à-vis the Constitution.
The Constitutional Scheme
Traditionally, the Cabinet has taken the initiative of introducing bills in Parliament. However, Parliament is not meant to merely rubber stamp these initiatives. Article 245 of the Constitution vests the power to make laws in Parliament and not the Cabinet. As per Article 107 a Bill may become a law only when it is “agreed to” by both Houses. Notably, the Constitution does not say “voted upon” or “approved”- phrases that could potentially capture a limited role for Parliament. An agreement denotes a consensus and a consensus can only emerge once differences have at least been discussed. Only then can a measure become a law.
This requirement of a consensus-building exercise is also embedded in the Rules of Procedure and Conduct of Business for both Houses of Parliament. An ordinary bill undergoes three readings in each House,[5] thereby creating multiple opportunities for a variety of opinions to be heard. The Rules also provide for the appointment of Joint and Select Committees at the first and second stage,[6] that are empowered to solicit opinions from public bodies, associations as well as the general public. These are indicators of a participative and deliberative democracy.
Interestingly, these rules specifically create opportunities for shorter and targeted discussion, through the motions for ‘Half Hour Discussions’ and ‘Short Duration Discussions’ on urgent matters of public importance.[7] It is abundantly clear from the scheme of the Constitution and the Rules of Procedure that Bills presented in Parliament were not intended to be discussed and passed in a matter of a few hours, with no time for reflection and debate. In the recently concluded session of the 17th Lok Sabha, the Muslim Women (Protection of Rights on Marriage) Bill [“Triple Talaq Bill’] was the most debated, only for a short period of 12 hours.[8] The J&K Reorganisation Bill, which converted the State into a Union Territory, was passed within a span of 3-4 hours in both Houses.
The recognition of the need to facilitate discussion is not new in Indian democracy. On 18th May 1949, one of the matters discussed by the Constituent Assembly was the number of sessions required annually for the Parliament to successfully perform its role. Professor KT Shah, a member of the Assembly, argued for an extended amount of time to facilitate the proper discussion of a bill, especially for matters of national importance, and termed this a part of “parliamentary responsibility”.[9] Interestingly, while his proposed amendment was not accepted by Dr. BR Ambedkar for fear of the sessions becoming overly lengthy and frequent (the biannual sitting of Parliament was deemed sufficient by the Assembly), Prof. Shah’s statement and the debate overall denotes the significance the Assembly placed on a proper deliberation of bills, and remains relevant today.
This significance of the value of deliberation to the Constitution was reiterated by the Supreme Court in State (NCT of Delhi) v. Union of India.[10] In explaining the desired relationship between the Lieutenant-Governor and Cabinet, the Court held that constitutional functionaries work under the scheme of participatory governance and mutual respect. In concluding its opinion, the majority observed that there is a constitutional requirement of discussion and deliberation, and the nuances of the issue must be dwelled upon.[11] This is essential to ensure the welfare of the people in an ethical and constitutionally sound manner.
Why is this emphasis on deliberative democracy important?
The emphasis on deliberative democracy is important, primarily because it fosters participation and compromise. Russell Hardin’s conception of a representative democracy is relevant here. Hardin argues that an assembly legislates better than the prince (i.e. a monarchical head of state) because it allows interests in contest to decide policy.[12] Cabinets may comprise of the leaders of the political party in power, but a legislative assembly is more representative of the several strata and communities in society. Deliberation in the assembly ensures that the ability of different blocs to participate in law-making is facilitated.[13] When bills are rushed through, members hardly have an opportunity to study the measure, obtain feedback from their constituents, conduct independent research or suggest necessary amendments to the proposed law. Their participation becomes a formality, which is clearly against the spirit of the constitutional role created for the legislature.
An added advantage of a forum such as the Parliament is the scope for political compromise and moderation.[14] Compromise need not always mean giving up on the best possible outcome. In fact, in a country as diverse as ours, it could mean moving towards that outcome. A compromise means the majority accommodates the concerns of the minority and that certain sections are not excluded by the higher echelons of society.
In fact, one can also suggest that deliberation is the only way through which optimal legislations can be drafted.[15] Reasoning and discussions bring out the flaws in the proposed statute, provide an opportunity to consider the various scenarios to which the law could apply and allow citizens to understand the intent of the legislature. Moreover, the diversity of expertise, knowledge and interests makes the Parliament a conducive space for this.[16] An unchallenged passage of bills only makes the law-making process opaque and defeats the purpose of having checks and balances embedded in the constitutional framework in the first place.
The concept of checks and balances based on the doctrine of separation of powers usually refers to the separation of the judiciary from the other, more ‘political’ organs. However, it is pertinent to remember that the Constitution also separates the legislature from the executive. It is true that, unlike the United States of America, there is an overlap between the executive and the legislature in India.[17] Members of the executive (i.e. the Council of Ministers) are chosen from the legislature and are a part of it. Nevertheless, there are different mechanisms such as “Question Hours”, “Adjournment Motions” and the like through which the legislature keeps a check on the executive. The very existence of a well-functioning legislature, through a clause-by-clause consideration of bills, scrutiny by Standing Committees etc. can ensure that the executive cannot impose its will on the nation.
When Bills such as the Unlawful Activities Prevention Act (Amendment) Bill are steamrolled through the House, the Parliament is simply unable to exercise this power and keep a check on the executive. The separation of powers among the three organs of the state is important to maintain the rule of law. When any institution over-steps its mandate and takes actions that may hurt the common good or curtail individual freedom, the other organs can step in and keep it in check. A degree of friction among the organs of the government ensures that no institution can act arbitrarily. However, the ineffectiveness of Parliament has meant that the executive now has a free reign to label any individual a terrorist under the UAPA (Amendment) Bill and the rule of law has most certainly been undermined.[18]
A second and equally important reason for the separation of powers is to ensure those best suited for a particular job perform that task. A legislative assembly is most conducive for the kind of deliberation necessary to enact laws, hence Article 245 vested the law-making power in Parliament. However, the Indian party whip structure and the presence of anti-defection laws under the 10th schedule have resulted in the reduction of intra-party opposition.[19] Coupled with the majority that the current government holds in the Lok Sabha, a large percentage of MPs within the House now follow a singular opinion and stance. Admittedly, this government can certainly claim popular mandate but that does not warrant the subversion of the democratic process.
These are worrisome trends because an obdurate Union Cabinet with little representation from other blocs is running amok in both the executive and legislative spheres. As we celebrate 72 years of independence, it is also important to wonder if the Parliament has been reduced to a mere formality, and if so, whether the will of the people is truly reflected in our laws and policies today.
*Dhruva Gandhi has recently completed his post-graduation from the University of Oxford. Unnati Ghia is a final year law student at the National Law School of India University, Bangalore.
[1] Ambika Pandit, ’35 bills passed over 37 sittings: Most productive Lok Sabha session in 20 years’, Times of India, (August 7 2019), https://timesofindia.indiatimes.com/india/lok-sabha-passes-35-bills-over-37-sittings/articleshow/70559976.cms; Ajit Kumar Jha, ‘When Parliament Meant Business’, India Today, August 9 2019, https://www.indiatoday.in/india-today-insight/story/when-parliament-meant-business-1578982-2019-08-09.
[2]Prasanna Mohanty, ‘Jammu & Kashmir Reorganisation Bill 2019: A rush job raising concerns of democratic propriety’, India Today, (August 6 2019), https://www.indiatoday.in/news-analysis/story/jammu-kashmir-reorganisation-bill-2019-decoded-1577790-2019-08-06.
[3]PTI, ‘Parliament passes Bill to Increase Number of Supreme Court Judges’, NDTV, (August 7 2019) https://www.ndtv.com/india-news/parliament-passes-bill-to-increase-number-of-supreme-court-judges-2081610.
[4]Dhruva Gandhi & Unnati Ghia, ‘Transgender Rights Bill: A Stunted Understanding of Gender and Equality’, The Wire, (August 5 2019) https://thewire.in/lgbtqia/transgender-rights-bill-a-stunted-understanding-of-gender-and-equality.
[5]Parliament of India, Lok Sabha: House of the People, ‘Passage of Legislative Proposals in Parliament’ available at http://164.100.47.194/Loksabha/Legislation/Legislation.aspx.
[6]Rule 118, Rules 298-305, Rules of Procedure and Conduct of Business in Lok Sabha, 15th edition (2014); Rule 72-92, Rules of Procedure and Conduct of Business in the Council of States (Rajya Sabha), 9th edition (2016).
[7]Rule 55, Rule 193-196, Rules of Procedure and Conduct of Business in Lok Sabha, 15th edition (2014); Rule 176-179, Rules of Procedure and Conduct of Business in the Council of States (Rajya Sabha), 9th edition (2016).
[8]Anand Patel, ‘Triple Talaq Bill most debated in first session of Parliament, Article 370 among top 10’ India Today, (August 9 2019) https://www.indiatoday.in/india/story/triple-talaq-bill-most-debated-in-first-session-of-parliament-article-370-among-top-10-1579198-2019-08-09.
[9]Centre for Law & Policy Research, Constitutional Assembly Debate (Proceedings) – Volume VIII, 18th May 1949, https://www.constitutionofindia.net/constitution_assembly_debates/volume/8/1949-05-18.
[10]State (NCT of Delhi) v. Union of India, (2018) 8 SCC 501.
[11]State (NCT of Delhi) v. Union of India, (2018) 8 SCC 501, 240, 283.
[12]R. Hardin, ‘Democratic Epistemology and Accountability’, 17 Social Philosophy and Policy 110, 120 (2000).
[13]R. Ekins, The Nature of Legislative Intent 155-57 (OUP, 2012).
[14]Id., at 159-60.
[15]See Edmund Burke, ‘Speech to the Electors of Bristol’ (1774);
[16]Jeremy Waldron, Representative Lawmaking, 89 Boston University Law Review 335, 343-45 (2009).
[17]Ronald L. Watts, Executive Federalism: A Comparative Analysis 7 (1989).
[18]Shaswati Das, ‘Lok Sabha passes anti-terror bill amid Opposition concerns over misuse’, LiveMint, (July 25 2019), https://www.livemint.com/politics/policy/lok-sabha-passes-bill-in-boost-to-anti-terror-laws-1563964089878.html.
[19]See Udit Bhatia, Cracking the whip: the deliberative costs of strict party discipline, Critical Review of International Social and Political Philosophy (2018).