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Parliaments in the Time of the Pandemic

Maansi Verma (maadhyam.connect@gmail.com) is a lawyer, public policy professional and the founder of the Maadhyam Initiative.

Democratic accountability demands that the executive decisions and actions during the pandemic need to be subjected to legislative scrutiny. However, this process is absent as the Parliament is adjourned and even the parliamentary committees are not functioning. Taking a cue from the parliaments worldwide that are functional during the pandemic, modalities to ensure the functioning of parliamentary institutions need to be devised.

On 23 March 2020, the budget session of Parliament, scheduled to run till 2 April 2020, was cut short and adjourned sine die (indefinitely) in the wake of the Covid-19 pandemic. The budget session, which had started on 31 January 2020, one day after the World Health Organization declared this outbreak as a Public Health Emergency of International Concern, witne­ssed 23 sittings during which many members of Parliament (MPs) raised questions related to the novel coronavirus and statements were made by ministers on the same. A question search on the Lok Sabha website throws up 44 results, with one of the earliest questions asked on 7 February on the screening of coronavirus cases to which the Ministry of Health and Family Welfare provided a detailed response on steps taken (Lok Sabha 2020a). Some ­other questions in the Lok Sabha pertained to the impact of the coronavirus on trade ­directed to Ministry of Finance (Lok Sabha 2020b) and discrimination faced by students from north-eastern parts of the country directed to the Ministry of ­Human Resource and Development (Lok Sabha 2020c).

Another 40 questions were raised in the Rajya Sabha, with the earliest on 11 February on measures to prevent the spread of the disease (Rajya Sabha 2020a). The Mini­stry of Labour and Employment was also questioned about the impact of the coronavirus on employment, and the ministry admitted to not having any data on ­retrenchments caused due to the same (Rajya Sabha 2020b). During this 23-day short budget session, the minister of health and family welfare made two statements each on the floor of both the houses apprising members of the steps taken, and two statements were made by the minister of external affairs about ­Indians stranded in other countries.1 All these questions and concerns raised by the MPs, along with statements made and ­responses given by ministers, are the outcome of the constitutional scheme of our parliamentary democracy.

Lack of Institutional Checks

Our Constitution envisages three primary roles for our Parliamentlawmaking, representation and accountability. The Constitution devolves the lawmaking power to Parliament by providing for all those subjects on which Parliament has jurisdiction to make laws,2 the representative nature of Parliament is evident from the composition of both houses3 and the accountability function of the Parliament is laid down in Article 75(3) of the Constitution, which states that “The Council of Ministers shall be collectively responsible to the House of People.” Thus, Parliament is a legislative body designed to keep the ­executive under check on behalf of the people it represents, and MPs use the ­instruments of questions and debates to perform their role. But, if Parliament is not in session when the entire nation is in the grip of a pandemic, then it creates an additional crisis of representation and accountability.

This is because the pandemic has ­expanded the scope of government control on every aspect of life with likely longer-term ramifications. On the one hand, as has been argued, governments in ­different parts of the world are seeing the crisis as an opportunity to impose harsh laws and restrictions, which are also being received positively by people reeling under fear of death, even if they come at the cost of loss of freedoms (App­lebaum 2020). And, on the other hand, a “solutionist” tendency has pervaded public administration where technology, bordering on surveillance, is ­being pushed as an appropriate response to every crisis, which comes at the cost of asking tough questions to those wielding power (Morozov 2020). In the absence of robust institutions to keep governments under check, demo­cratic principles may be under threat.

As per a tracker set up by PRS Legislative Research, as many as 732 notifications have been issued by the central government since the spread of the virus came to light. These range from international travel restrictions to the postponement of board exams to prohibition on the export of masks, ventilators and advisories to employers to refrain from terminating from employment or deduction of wages.4 Some of these notifications have invited criticismthe voluntary deduction of one day’s salary of government staff to Prime Minister’s Citizen Assistance and Relief in Emergency Situations (PM CARES) which is mandatory in effect (Mohanty 2020); the automatic extension of environment clearance to all projects and the issuing of draft Environment Impact Assessment notification for public consultation, which environmentalists have decried (Nandi 2020); the mandatory use of Aarogya Setu app on which many privacy concerns have been raised (Clarance 2020).

Two months into the lockdown, the Supreme Court has also received scathing condemnation for its abdication of duty with respect to monitoring government’s inadequate intervention in providing relief to migrant workers and has been urged to shed its helplessness and exercise its power under Article 142 to do complete justice (Indian Express 2020). Right to information activists have exp­ressed concern on the dismal functionality of information commissions in various states though the Central Information Commission began hearings through videoconferencing and audio means from 15 April itself as citizens’ right to information requires even greater protection during the times of crisis (Mishra 2020). The non-functionality of any ins­titution that keeps the executive under check in these times is problematic, but even more concerning is the non-availability of the most fundamental platform for raising concerns on excesses or failures of the governmentParliament.

Representation and Accountability

At the outset, it must be noted that it is disconcerting that the Indian Parliament itself has no control over when a session may be called and when it is adjourned. Though the President summons and prorogues a session, they do so on the aid and advice of the council of ministers.5 Having assumed the power to decide the dates of a session to itself, the executive is able to control the agenda in various manners. For instance, Parliament sessions have been postponed to avoid providing a platform to the opposition ahead of a crucial state election; the intersession period is often used to bring ordinances that the government may otherwise find difficult to push through in Parliament (Verma and Prasad 2018). This is contrary to the practice in some other countries like the United Kingdom (UK), Australia, Canada, and South Africa where calendars with sitting dates are anno­unced at the beginning of the year itself (Khullar 2017). Additionally, in the UK, MPs approve recess through a vote (BBC 2019b), and last year, the supreme court of UK struck down the prorogation of Parliament by the Queen, with several days of sittings left, as it prevented “Parliament from being able to do its job” (BBC 2019a).

In contrast to India’s Parliament with no set calendar, several parliaments across the world are committed to meet on set dates through the year, and therefore, it was not surprising to see many parliamentary institutions quickly adapting to the changed circumstances. Since sitting in close proximity with each other was no longer feasible, many parliaments switched to virtual or hybrid sessions. In the UK, hybrid sessions were organised as per which up to 50 members could be physically present in the chamber and 120 could be present over videoconference, and members could raise departmental questions, Prime Minister questions, legislative business and even remote voting could be conducted through the same (UK Parliament 2020d). Canada also organised a virtual parliament where MPs joined over a Zoom call, permitting MPs to ask questions to the government (Tumilty 2020). The Bureau of European Parliament has agreed to temporary changes to its rules of procedure to permit virtual deliberations and voting by MPs and committee members (Library of Congress 2020). In Chile, the constitution was amended to permit the senate to hold sessions in a mixed-system of face-to-face and virtual participation, allowing for remote voting as well (Republic of Chile Senate 2020).

Spain, one of the worst affected countries by the pandemic, also ensured that legislative work does not stop, as despite a complete lockdown, MPs continued to deliberate and vote on legislative propo­sals (Alsina and Gambrell 2020). Closer home, Maldives parliament or People’s Majlis is using Microsoft Teams videoconferencing technology to hold virtual parliament sessions. The Speaker of Maldives Parliament, Mohamed Nasheed, sums up the need to move towards virtual sessions thus, “Parliaments worldwide cannot just stop representing their people during this crisis. The institutions of demo­cracy must continue to function” (Frontier Enterprise 2020). As per some reports, the Indian government is now considering measures like holding the sessions in Central Hall, which will provide more space to MPs, alternate sittings ­between the Lok Sabha and Rajya Sabha, ­remote attendance, and even a UK style hybrid model, but even then, the session may only be convened by the end of ­August (Sharma 2020). There seems to be no urgency as the Constitution permits a six-month hiatus between the end of one session and start of another.6 Parliament will continue to be prevented from doing its job.

Parliamentary Committees

But, what has been doubly disappointing for India is the fact that the parliamentary committees that continue to function even when Parliament is not in session have also been rendered dysfun­ctional. Several MPs have requested the presiding officers of both houses to allow committee meetings to be conducted virtually, arguing that even the Prime Minister and other ministers are holding meetings virtually (Prabhu and Banerjie 2020). It has been reported that such a move has been ­resisted by the Parliament secretariat as committee meetings are supposed to be confidential and virtual meetings can be hacked into (Varma and Anuja 2020). Though a valid concern, it is not entirely clear that when the Prime Minister and other government officials have already started using an online meeting portal designed by NIC (National Informatics Centre), why can the same not be used for committee meetings as well? (Chatterji 2020a). Chakshu Roy, head of legislative and civic engagement at PRS Legislative Research, while highlighting that Rules of Procedure provide enough discretion to presiding officers to permit virtual meetings, argued that

The institution of Parliament has to continuously evolve to not only keep a check on the increasing canvas of government functioning, but to also stay relevant as a governance institution. (Yamunan 2020)

There were indications that the Parliamentary Standing Committee on Home Affairs would meet on 3 June 2020 and become the first department-related Standing Committee to meet since the lockdown was first imposed (Chatterji 2020b). The union home secretary had to appear before the committee and brief the members on the ministry’s handling of the crisis and respond to questions by the members. Given the slew of notifications and guidelines that the Ministry of Home Affairs issued on containment and movement of people throughout the duration of the lockdown, this review by the committee should have happened much sooner. But the meeting had to be postponed as several MPs expressed the inability to travel, and a request for a virtual meeting was denied by the Rajya Sabha Secretariat (Manoj and Mathew 2020). In the UK, just before parliament went into recess, MPs raised several questions to the Prime Minister on the handling of the coronavirus, including one on “publishing the scientific advice that the decisions [lockdown decisions] were based on” (UK Parliament 2020b). But Indian people, represented through their MPs, are at a disadvantage in raising such questions on the floor of Parliament or in committee meetings.

In UK again, a joint select committee on human rights launched an inquiry into the human rights implications of the government’s response to Covid-19 and specifically looked at the surveillance and breach of privacy concerns arising out of their contact-tracing application, the ­report of which was also made public (UK Parliament 2020a). Following this, the committee also drafted a bill on the Covid-19 contact tracing application, asking the government to bring it to parliament (UK Parliament 2020c). In India, similar concerns have also been raised with respect to the Aarogya Setu application and ­demands have been made for it to be rooted in a law, which abides by the standards for privacy laid down by the Supreme Court (Prasad 2020). But, it is only a matter of speculation whether the government would consider bringing a bill for the same anytime soon, especially when the Personal Data Protection Bill also remains pending before the Joint Parliamentary Committee (JPC) which is unable to meet.

South African parliament recently held a joint meeting of its Committee on Social Development and Health and Social Services where the committees were briefed by non-governmental organisations as well as the Department of Social Development on the implementation of food security, psycho–­social support and gender-based violence-related programmes in response to Covid-19 (Parliament of the Republic of South Africa 2020). Despite a looming food security crisis in India, the standing committees in Indian Parliament have not had the opportunity yet of being briefed either by ministry officials or other stakeholders on the steps taken by the government to provide relief to people in distress. On 31 March 2020, barely seven days after the budget session was curtailed, the central government brought an ordinance that, among other things, provided for 100% tax exemption to donations made to PM CARES, which was established a few days before (Economic Times 2020). Had the budget session been allowed to run its ordinary course till 3 April, the government would have had to bring this as a bill in Parliament, which would have ­facilitated a debate on many issues concerning PM CARES which have been highlighted since then (Meghnad 2020).

In Conclusion

In 2011, following the 2G spectrum allocation controversy, the government of the day was pushed by the opposition to set up a JPC to look into the allegations, and Arun ­Jaitley, the leader of opposition in Rajya Sabha at that time, famously termed the upcoming budget session as the “session of accountability” (Economic Times ­2011). Not just that session, every session and every sitting of Parliament is about accountability, though not in an adversarial manner but in a collaborative, cooperative manner, which advances the interests of the people whose voices the parliamentarians represent. Modern parliaments are described as institutions aiming towards the ideal of a “strong­ ­Executive Government tempered and controlled by constant vigilance and representative criticism” (Kaul and Sha­kdher 2016: 10). ­Adjourned in the midst of a pandemic, India’s Parliament currently is far from this ideal.

It is, however, possible to make incremental steps towards that ideal. As long as the fear of infection looms large, various activities all over the world will continue to go digital and virtual, and our Parliament and its committees cannot be an exception. The standing commi­ttees must be enabled to meet online at the earliest. As per the Lok Sabha website, the Standing Committee on Labour and Information Technology was scheduled to meet on 5 June and 10 June 2020, respectively. However, the Information Technology Committee meeting had to be postponed to 17 June 2020 as, ironically, no decision could be reached on holding the sitting through videoconferencing. For future meetings, instead of pushing the date ahead, arrangements must be put in place for those MPs who cannot travel to join the meeting virtually.

Additionally, those parts of committee meetings in which oral evidence is being tendered before the committee, whether by ministry officials or by external stakeholders, must be made public as is the practice in several other countries (Livemint 2017). This is because, especially during a pandemic, transparency around the steps being taken by the government for the people, acts as an essential check against greater concentration and abuse of power (Transparency International 2020). Finally, now would be an appropriate time to experiment with a precedent for allowing MPs to demand special sessions of Parliament to deal with emergency concerns. Naresh Gujral, ­Rajya Sabha MP from Shiromani Akali Dal, had made a similar proposition in his private member’s bill in which he provided that such a special session, which may be of 15 days’ duration, should be convened to deliberate on a limited number of matters of urgent importance, which may be decided after deliberating not just with all political parties but by inviting suggestions from public as well.7 Despite several MPs supporting the bill, it was negatived during the vote but the ideas proposed in the bill are more relevant now than ever.

Notes

1 On 7 February 2020 in Rajya Sabha followed by 10 February 2020 in Lok Sabha, the health mini­ster made detailed statements on the steps taken by government to deal with spread of the corona­virus. Again on 5 March 2020, statements were made by the health minister in the Lok Sabha as well as the Rajya Sabha. On 7 February, the minister of external affairs also made a statement exp­laining steps being taken by the government to bring back stranded Indians in other countries like China and Iran. On 12 March, the minister of external affairs gave a statement in the Lok Sabha on Indians stranded in Iran.

2 Article 246 read with Schedule VII of the Constitution of India.

3 Article 80 of the Constitution of India provides for composition of Council of States to comprise of 238 representatives of states and Article 81 provides for composition of House of People to comprise of 530 members chosen by direct election.

4 https://prsindia.org/covid19/notifications,

5 Article 85 read with Article 74 of the Constitution of India.

6 Article 85 of the Constitution of India.

7 Rajya Sabha, “The Parliament (Enhancement of Productivity) Bill 2017,” introduced on 24 March 2017, http://164.100.47.4/BillsTexts/RSBillTexts/asintroduced/parliament-24317-E.pdf.

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Updated On : 15th Jun, 2020

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