Why was parliamentary democracy the chosen modus operandi for political function in Independent India? Were India’s constitutional architects ostensibly mimicking their colonial predecessors to proverbially ‘walk out’ of what John Stuart Mill referred to as the ‘waiting room of history’ or — more plausibly — were they attempting to reconcile the fissiparous tendencies apparent in Partition-inflicted Independent India through a system of deliberation, consensus and constraint? If you subscribe to the latter, these are difficult times. For instance, on the back of nearly two months of a near-total shut-down, the State of Jammu & Kashmir has been re-organised into two Union Territories. Challenges to the constitutional validity of this measure remain to be heard by the Supreme Court, but, in the meanwhile, several questions as to its legality and the procedure used to implement it have already been raised. As of today, one can only surmise that these constitutional concerns could have been better addressed had Parliament duly debated and deliberated before passing the Jammu and Kashmir Reorganisation Bill. As things stand, the fact remains that a legislation as historic as this one was pushed through both Houses of Parliament in a matter of hours without much discussion.
Our concern here is not limited to the J&K Reorganisation Act. It emanates from what appears to be a broader trend. In the last concluded session of Parliament, both Houses performed their legislative duties with prodigious efficiency to clear the largest number of bills ever passed by the Indian Parliament in decades. However, like the J&K Reorganisation Act, lapses in legislative procedure and customs were stark; a bill to increase the number of Supreme Court judges was passed unquestioningly as a Money Bill; the controversial Transgender Rights Bill requiring transgenders to procure an identity certificate was passed in the Lok Sabha on the same day as its introduction. Naturally therefore, there are rising concerns regarding the quality of such legislations and the political implications of their passage. In this article, we suggest that this trend raises some serious red-flags vis-à-vis the Constitution.
The Constitutional Scheme
Traditionally, the Cabinet has taken the initiative on introducing bills in the Indian Parliament. However, Parliament is not meant to merely rubber stamp these initiatives. Article 245 of the Constitution vests the power to make laws in the Parliament and not the Cabinet. Additionally, Article 107 says that 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 the very least — been discussed. Only then can a proposed bill become a law.
This requisite 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, 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, that are empowered to solicit opinions from public bodies, associations as well as the general public; indicators of a participative, functional and deliberative democracy.
Interestingly, they also specifically create opportunities for a shorter, more targeted discussion, through the use of motions for ‘Half Hour Discussions’ and ‘Short Duration Discussions’ on urgent matters of public importance. 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, and that too for only 12 hours. The J&K Reorganisation Bill, which converted the State into a Union Territory, was passed in a span of 3-4 hours in both Houses.
The need to facilitate discussion is not new to Indian democracy. On 18th May 1949, one of the matters discussed by the Constituent Assembly was the number of sessions required annually for Parliament to successfully perform its role. Professor K.T. Shah, a member of the Assembly, argued for an extended amount of time to facilitate the proper discussion for a bill, especially in matters of national importance, and termed this as “parliamentary responsibility”. Interestingly, while his proposed amendment was not accepted by Dr. B.R. Ambedkar, for fear of the sessions becoming overly lengthy and frequent (the biannual sitting of Parliament deemed sufficient), Professor Shah’s statement and the overall debate denoted the significance the Assembly placed on the proper deliberation of bills, and remains extremely 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. In explaining the desired relationship between the Lieutenant-Governor and Cabinet, the Court held that constitutional functionaries work under a scheme of participatory governance and mutual respect. In its opinion, the majority observes that there is a constitutional requirement of discussion and deliberation, and the nuances of the issues involved must be dwelled upon. 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?
This is so primarily because it fosters participation and compromise. Russell Hardin’s conception of a representative democracy 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. Cabinets may comprise the leaders of the political party in power, but a legislative assembly is more representative of several stratas and communities in society. Deliberation in the assembly ensures that the ability of different blocs to participate in law-making is facilitated. 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 mere formality.
An added advantage of a forum such as Parliament is the scope for political compromise and moderation. Compromise need not always mean giving up on the best possible outcome. In fact, in a country as diverse as ours, it could be moving towards that outcome. A compromise means the majority accommodates the concerns of the minority and that certain sections of society are not excluded by the higher echelons.
In fact, one could also suggest that deliberation is the only way through which the most optimal legislations can be drafted. Reasoning and discussion 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 legislative intent. Moreover, the diversity of expertise, knowledge and interests make the Parliament a conducive space for this. An unchallenged passage of bills only makes the law-making process opaque and defeats the purpose of having constitutional checks and balances in the first place.
On the point of checks and balances, usually when we speak about the separation of powers in this country, we refer 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. 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” etc., 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. serves to ensure that the executive cannot simply stamp its will on the nation.
When Bills such as the Unlawful Activities Prevention Act (Amendment) are jettisoned through the House, the Parliament is simply unable to exercise this check. 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 them ensures that no institution may act arbitrarily. However, the ineffectiveness of Parliament has meant that the executive now has a free reign to label any individual as a terrorist under the UAPA (Amendment) Bill and the rule of law has most certainly taken a dent.
A second and equally important reason for the separation of powers is to ensure those best suited for a particular job perform the task. A legislative assembly is most conducive to the kind of deliberation necessary to enact laws and 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. 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.
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 move towards our next Republic Day celebration, 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.
An earlier version of this article was published on NLS Socio-Legal Review Forum