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Washed-out Parliament

Need for Anti-defection Reform

Alok Prasanna Kumar (alok.prasanna@vidhilegalpolicy.in) is senior resident fellow at the Vidhi Centre for Legal Policy, and is based in Bengaluru.

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The most recent budget session of Parliament was an almost total washout thanks to disruptions of many kinds. Almost no legislative business was transacted and viewers were treated to the ugly sight of the speaker of the Lok Sabha using her powers to “guillotine” debate on important issues of funding for ministries of the union government. Both, the opposition parties and the government will point fingers at each other, and they would both be right and wrong. The opposition did not seem to want to allow debate on government business to take place, while the government did not seem to particularly care if debate took place or not.

Whatever the immediate causes for this sorry situation, the fact is that the washout of the budget session is part of a trend that has been evident in state legislative assemblies for a while. What is happening in Parliament is only a reflection of the larger dysfunction in the way parliamentary democracy has been working in India at the state level. Some of this is attributable to structural factors, principally constitutional provisions relating to anti-defection and the use of money bills,1 and how these have been interpreted by the Supreme Court. I argue here that securing parliamentary democracy may require a serious rethink on the laws relating to both as they stand.

Tenth Schedule and Money Bills

As I have argued in these pages before, there exist flaws in the Tenth Schedule of the Constitution, which have been exposed by the shenanigans of parliamentarians and parties (Kumar 2017). In its current form, it does not even fulfil the purpose it set out to realise. The hope expressed by the majority judgment of the Supreme Court in Kihoto Hollohan v Zachilhu (1992), that the speaker will prove to be an impartial and non-partisan arbiter of disqualification disputes, has been belied.

But, how has the Tenth Schedule contributed to the present malaise of dysfunction in Parliament?

For a start, in its present shape, the Tenth Schedule has placed the political party, and not the individual legislator, at the core of parliamentary democracy. It was a curious oversight (or, perhaps, not), but the Constitution made no reference to political parties at all, until the introduction of the Tenth Schedule. Yet, as it stands, thanks to the Tenth Schedule, legislators are now accountable to the political party on whose symbol they were elected and not to their constituents.

Their voting behaviour in Parliament makes them answerable to the party through the disqualification process, much before they have to face the electorate in the consequent elections. Every disagreement with the party line requires automatic validation from the electorate, as legislators who choose to put their constituents over their party can only do so if they are willing to face elections immediately.

This flaw of the Tenth Schedule, which has been raised repeatedly right from the start—and even in Justice Jagdish Sharan Verma’s dissenting opinion in the Kihoto Hollohan case—has been glossed over. With legislators iron-bound to the party whip, we have seen this being played out at the state level, where legislative assemblies are functional for as few days as possible, sometimes with the entire opposition expelled for flimsy reasons (Indian Express 2016). Legislators know that it is safer to toe the party line once a whip is issued, given the expense and effort of an election, leading to less debate and more disruption.

The origin of the “money bill” lies in a particular historical incident. In the context of the United Kingdom’s (UK) parliament, it can be traced to the Parliament Act, 1911, which came to be passed as a result of the House of Lords refusing to pass the “people’s budget,” which had been passed by the Labour Party-ruled House of Commons in 1909. The move was designed to curb the power of the unelected House of Lords, and prevent its members from having a veto over the functioning of the popularly elected House of Commons, especially in the context of financial bills (Datta et al 2017).

Even though not every state in India has an “upper house,” identical provisions pertaining to money bills were present in the Indian Constitution in the context of the union and state legislatures. In both contexts (Articles 110 and 199, respectively), the power to certify a bill as a money bill rests with the speaker. Although the Government of India Act, 1935, did provide for “financial bills,” these were not certified as such by the speaker, but could only be introduced with the permission of the Governor-General of India (Datta et al 2017).

While some of the logic of the UK justification for money bills does apply to the Indian Parliament in the context of the Lok Sabha and the Rajya Sabha, it falls apart when one examines the justification for the existence of the Rajya Sabha in the first place. Unlike the House of Lords, membership is not inherited or based purely on nominations, but filled on the basis of elections, even if these are indirect elections. Further, the Rajya Sabha was supposed to protect the interests of the states in Parliament and help strengthen the federal structure of the Constitution. The gradual erosion of the domicile requirement, finally given the axe by the Supreme Court in Kuldip Nayyar v Union of India (2006), has meant that it has become the refuge of those political parties wishing to accommodate their own interests, rather than those of a state.2

In this context, the use of money bills has only pushed the Rajya Sabha into further irrelevance as a forum for debate. The current debate over money bills only began when the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (Aadhaar Act) was passed by Parliament as a money bill. The constitutional validity of this move is up for challenge (Jairam Ramesh v Union of India 2016). Those challenging the act contend that notwithstanding that the Aadhaar Act relates to money being spent from the Consolidated Fund of India, it also deals with a whole range of other issues, which automatically disqualify it from being considered as a money bill.

The government, however, points to a Supreme Court judgment in its defence—Mohammed Saeed Siddiqui v State of UP (2014)—where a three-judge bench held that once a speaker certifies a bill as a money bill, there is no room for any judicial review or question. This case related to an amendment to the Lokayukta law in Uttar Pradesh. The Supreme Court’s refusal to delve into the question of whether the amendment could have been validly passed as a money bill (and thereby surpass the authority of the Uttar Pradesh Vidhan Sabha) might have grave implications for the fate and the future of the Rajya Sabha.

The flaws in the Supreme Court’s reasoning in the Mohammed Siddiqui judgment have been examined elsewhere (Surendranath 2016; Kumar 2016), but, interestingly, the Court does not make any reference to its own earlier judgment in the Kihoto Hollohan case, which seemingly ensured that key decisions of the speaker cannot be beyond judicial review.

Parliamentary Reform

If single-party majority governments do not feel the need to engage in debate with the opposition, Parliament will simply serve as a rubber stamp for the decisions of the government. Each time the ruling party wields its whip effectively and uses the money bill route for contentious legislation, the authority and importance of Parliament diminishes.

This trend is hopefully not irreversible. The first significant change must come through in the Supreme Court’s interpretation of the constitutional provisions relating to money bills and scrutiny of the speakers’ powers. The Supreme Court’s constitution bench examining the validity of the Aadhaar Act is currently also scrutinising the correctness of the Mohammed Siddiqui ruling. The Court’s interpretation of the provisions relating to money bills will not only have an impact on the Aadhaar Act, but could have enormous implications for the future of Parliament as well. An interpretation that agrees with the speaker’s absolute discretion to certify money bills could sound the death knell for the Rajya Sabha as a forum for serious discussion and debate, especially on federal issues. If nothing else, the Supreme Court must seriously reconsider its judgments on the grounds that one of the basic features of the Constitution, parliamentary democracy, is under threat.

A rethink of the Tenth Schedule might prove much more difficult. Political parties have no incentive to reform this part of the Constitution, which will make it harder for them to control their legislators. The Tenth Schedule has only been amended once since it has been introduced, to make it even harder for legislators to dissent from the official party line. No doubt the influence of money and crime on politics needs to be curbed, but the question remains: Is this the only way? More importantly, might not the Tenth Schedule have contributed to more forms of unscrupulous behaviour by parties and legislators? It is obvious that the Tenth Schedule of the Constitution, far from preventing defections, has resulted in lesser debate within Parliament. Coupled with the misuse of money bills to pass legislation, this trend, if left unchecked, could render the institution of Parliament irrelevant.

At some point, the meaningful survival of the Westminster form of parliamentary democracy in India will demand serious debate on this issue. Even if this debate does not happen within the halls of Parliament (for obvious reasons), perhaps it may be up to the Supreme Court to re-examine the constitutionality of the Tenth Schedule in light of what it has inflicted upon the parliamentary process in India.

Notes

1 Some of the factors leading to parliamentary disruption have been discussed in Madhavan (2018). For a more detailed perspective on all aspects of parliamentary disruptions, see Srivastava et al (2017).

2 Where the law has failed, political considerations might mean a return to the domicile requirement. Karnataka Chief Minister Siddaramaiah insisted that Rajya Sabha nominees of the Congress party had to be from Karnataka, turning down requests to accommodate leaders from outside the state in recent elections (Satish 2018).

References

Datta, Pratik, Shefali Malhotra and Shivangi Tyagi (2017): “Judicial Review and Money Bills,” Working Paper No 192, National Institute of Public Finance and Policy.

Indian Express (2016): “States of Dysfunction,” 23 December, http://indianexpress.com/article/opinion/editorials/parliament-session-w....

Jairam Ramesh v Union of India (2016): Writ Petition (Civil) 231 of 2016, Supreme Court, judgment pending.

Kihoto Hollohan v Zachilhu (1992): SCC, SC, Supp 2, p 651.

Kuldip Nayyar v Union of India (2006): AIR, SC, p 3127.

Kumar, Alok Prasanna (2016): “Why the Centre’s Dubious Use of Money Bills Must Not Go Unchallenged,” Scroll, 11 May, viewed on 17 April 2018, https://scroll.in/article/807861/why-the-centres-dubious-use-of-money-bi....

— (2017): “Defecting from the Law,” Economic & Political Weekly, Vol 52, No 24, pp 12–13.

Madhavan, M R (2018): “Parliament Logjam: Budget Session 2018 Washout, Worst in Over a Decade, Shows Why Legislature Desperately Needs Reform Agenda,” Firstpost, 16 April, viewed on 17 August 2018, https://www.firstpost.com/india/parliament-logjam-budget-session-2018-wa....

Mohammed Saeed Siddiqui v State of UP (2014): SCC, SC, 11, p 415.

Satish, D P (2018): “No Sam Pitroda for Rajya Sabha from Karnataka as Siddaramaiah Rules Out Outsiders, Fields 3 Kannadigas,” News18.com, 11 March, viewed on 17 April 2018, https://www.news18.com/news/politics/no-sam-pitroda-for-rajya-sabha-from....

Srivastava, Medha, Yashaswini Mittal, Rajesh Chakrabarti, Kaushiki Sanyal and Arghya Sengupta (2017): “Parliamentary Productivity Index: Measuring Disruptions in the Indian Parliament,” Vidhi Centre for Legal Policy, viewed on 17 April 2018, https://vidhilegalpolicy.in/reports/2017/2/9/parliamentary-productivity-....

Surendranath, Anup (2016): “Aadhaar Act as a Money Bill: Judicial Review of Speaker’s Determination Concerning Money Bills,” Centre for Communication Governance, National Law University, Delhi, http://ccgdelhi.org/doc/(CCG-NLU)%20Aadhaar%20Money%20Bill.pdf.

Updated On : 20th Apr, 2018

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