Allow the Opposition a discussion on a subject of its choice under Rule 193 every day, get judges to preside over both Houses, and empower legislators by relaxing the anti-defection law
By Manish Tewari
On India’s 75th Independence day, the Chief Justice of India (CJI) NV Ramana expressed his anguish about the manner in which laws were being legislated in Parliament.
He stated, “Now, it is a sorry state of affairs. There are a lot of gaps and a lot of ambiguity in the law-making process due to [the] lack of debates. We don’t know what the intent of the legislature is. We don’t know for what purpose the laws are made. This causes great inconvenience to the people …”
The CJI is spot on. His distress deserves the collective consideration of every Member of Parliament (MP). Given that the entire monsoon session of Parliament was wiped out without a single substantive discussion of any consequence, except for one debate on Covid-19 mismanagement in the Rajya Sabha, it brings into question the legitimacy of the institution of Parliament.Moreover, 22 bills were pushed through both Houses of Parliament by the government without any deliberation in either House. This constitutes a clear violation of Article 107 of the Constitution of India, and the Rules of Procedure and Conduct of Business in both Houses of Parliament.For over three decades now, disruption has become the norm and the functioning of Parliament, the exception. The day the House functions, it makes headlines.This raises two obvious questions: Are disruptions a legitimate parliamentary tactic by the Opposition, and can an obdurate government just stymie discussion and debate in the House leveraging the despotism of numbers?
The National Democratic Alliance (NDA) set the benchmark of disruptions. In August 2012, justifying the wipeout of the winter session of 2010 and the monsoon session of 2012, the then leader of the Opposition in the Rajya Sabha, Arun Jaitley, argued, “If parliamentary accountability is subverted and a debate is intended to be used merely to put a lid on parliamentary accountability, it is then a legitimate tactic for the Opposition to expose the government through parliamentary instruments available at its command… We are not interested in a debate. What is there to debate?” he told an English news channel. The thrust of his argument was that disruption is a legitimate parliamentary tactic.
His colleague, leader of the Opposition in the Lok Sabha, Sushma Swaraj, was equally vociferous when she said, “Not allowing Parliament to function is a form of democracy like any other form… Debate under (Rule) 193 would mean a ‘talkout’ by the government and a walkout by the Opposition. If we had taken debate under (Rule) 184, they would have won because they have numbers.”These words set the stage for what has followed in the past nine years. The Opposition, at least the Indian National Congress (INC), may well be justified in sticking it to the government for what it endured for 10 years at the hands of the NDA/Bharatiya Janata Party (BJP) between 2004-2014, but where does that leave the supreme temple of democracy?In an informal conversation with the Speaker of the Lok Sabha, I suggested a way out. When government business finishes at 6 pm, the Speaker should allow a Rule 193 discussion in the Lok Sabha, and under a corresponding rule in the Rajya Sabha every day on a subject of the Opposition’s choice till 9 pm. Under rule 193 of the Lok Sabha, any member who wishes to raise a discussion on a matter of urgent public importance may write to the secretary-general precisely specifying the matter to be raised. It is rare in practice that the Opposition seriously wants a discussion under Rule 184 that also entails voting, even though it may table notices daily more as a tactic. No-confidence motions are, in any case, a rarity. This, however, would require large-heartedness and a supreme degree of magnanimity by the treasury benches to acquiesce to a discussion every day on a subject of the Opposition’s choice, even if it does not entail a vote at the end of it. What the government would gain, however, is a meaningful discussion on government bills, an interruption-free question hour, and a disturbance-free zero hour. Even private member’s business, which has not even once been transacted substantively in the Lok Sabha since May 2019, would start taking place. A small but significant concession by the government could pave the way for the supreme legislative institution to function harmoniously. The biggest beneficiary would be the institution of Parliament itself.
There is also a robust need for restructuring the institution of the presiding officers of both Houses of Parliament. The two essential attributes of a presiding officer must be autonomy of decision-making and exacting neutrality — this is hard to achieve if both the Speaker of the Lok Sabha as well as the chair of the Rajya Sabha (vice-president of India) are elected as nominees of one or the other political party at the inception of their office. While the vice-president resigns from the political party he is affiliated to, the Speaker continues to retain membership in the political party. However, ideological commitment runs deeper than pro-forma disassociation.With no affront contemplated, much less intended, to the current Speaker or chairperson or their revered forerunners, the time has come to seriously deliberate on whether or not presiding officers of both Houses should be serving judges of the Supreme Court on lien and appointed for five years in case of the Lok Sabha and six years for the Rajya Sabha. This would ensure that truly dispassionate referees conduct the proceedings of both Houses of Parliament. A similar practice must be adopted for state legislatures with presiding officers requested from respective high courts.
Insofar as the CJI’s concern about tardy lawmaking goes, to improve it, as I have been repeatedly arguing through two private member’s Bills, in 2010 and then again in 2019, the rigours of the anti-defection law would have to be relaxed, and whip-driven tyranny circumscribed to only those motions that impact the continuance and stability of the government.The legislative space needs to be freed up for MPs and Members of Legislative Assembly (MLAs) to start taking a renewed interest in their primary function making good laws for the nation as well as the states respectively. Legislators needs to be liberated and empowered again by making them feel that their vote counts, and that when they dissent because of the imperatives of constituency, commonsense or conscience, their membership of the House would not become a casualty that it currently does if a whip is violated.
Moreover, it must be prescribed in the rules of procedure that no bill be passed in either House without it being referred to a standing/select committee for comprehensive scrutiny. This would make Parliament function around the year rather than just four months annually.Parliament has to be rescued from what it has currently descended into — a gladiatorial arena to seize executive power, with disruption deployed as a maximalist strategy. This is only exacerbating the death spiral of an institution grappling with a serious crisis of credibility.
Manish Tewari is a lawyer, MP, former I&B minister, and Congress leader
The views expressed are personal