By Gautam Bhatia
During the framing of India’s Constitution, multiple models of governance were proposed for the newly independent nation. The framers of the Constitution finally selected the model of “parliamentary democracy”. As the term suggests, there are two equally important constituent elements of this model — Parliament and democracy.
Over the years, the meaning of “democracy” – and what it means to be democratic – has been contested and debated. But what has perhaps been discussed in less detail has been the importance of a thriving Parliament towards the sustaining and flourishing of democracy.
In an ideal situation, Parliament is the source of legitimacy for a democracy’s laws; it is important to note, however, that this legitimacy is not drawn only from the fact that parliamentarians have been elected. Parliament has, in addition, a number of processes designed to ensure that the people’s elected representatives are allowed to deliberate and discuss, and seek, receive, and impart information about proposed laws, before the final vote and enactment. The legitimacy of laws, therefore, is not simply a function of the fact that they have been passed in Parliament, but also a function of the quality of deliberation that has gone into their passage.
It is trite to say that reality rarely approximates the ideal. From the time of Independence, successive Indian governments have sought to undermine the functioning and authority of Parliament, and shift power to the executive instead. From the very beginning, India’s prime ministers took the ordinance-making route to bypass Parliament in case of contentious laws; the number of parliamentary sessions has steadily declined over the years; in the 1960s, frequent floor-crossing further shook the legitimacy of Parliament, leading to the passage of stringent anti-defection laws, which have arguably demonstrated the truth of the old adage of “operation successful, patient dead”.
This long tradition has continued and accelerated over recent years, to the point where it is not too much of an exaggeration to say that, at present, Parliament is a moribund institution (admittedly, the position of state legislative assemblies is substantially worse).
In recent times, we have seen partisan speakers flagging laws as money bills in order to evade the scrutiny of the Rajya Sabha, where the government may lack a majority. We have seen less and less time being given to deliberation over the substantive content of bills, with highly complex proposed laws being passed in a matter of minutes (or less). We have seen a steep decline in the referral of bills to parliamentary committees, which are crucial sources of data- and research-gathering, something that is essential for Members of Parliament (MPs) to make an informed decision about the bills they are voting on. And, perhaps most egregiously, we have seen subversions of the voting processes within Parliament, with division being refused and controversial bills (such as the farm laws) being passed on the basis of a voice vote — something that allows individual MPs to evade their constituents’ scrutiny by putting their name to their vote.
When a Parliament ceases to function, a parliamentary democracy turns, in effect, into an electoral autocracy. In an electoral autocracy, periodic elections are treated not as the beginning of the governance process, but as the end of it. An election accords a blank slate to a small group of people — ie, the leaders of the ruling party — to effectively rule by decree, free of any continuing requirements of accountability.
The question then arises — if we do not want an electoral autocracy, what is to be done? Long-term, of course, there is no solution other than a public and social movement that goes back to the basics, and places a functioning Parliament at the centre of its demands for change. That, however, is a process that can take many decades.
More short-term, let us remember that our Constitution envisages three wings of State — the legislature, the executive, and the judiciary, with the role of each being, among other things, to check the excesses of the others. In a situation in which the executive’s actions are making Parliament redundant, it falls to the third wing — the judiciary — to intervene, not out of any desire for activism or personal glory, but simply as a requirement to police the boundaries of what makes democratic outcomes legitimate.
In recent times, scholars such as Jahnavi Sindhu and Vikram Narayan, and Dhananjay Dhonchak, have suggested a remedy; when it is demonstrated clearly that Parliament has been treated as a rubber-stamp for law-making – where, for example, laws have been passed without division voting (despite it having been asked for), where there has been no deliberation before passage, or where the government claims that its reasons for passing a law are “X”, but entirely fails, or refuses, to provide any evidence for the existence of “X” — the courts should treat any or all of this as strong reasons for finding the law to be unconstitutional.
This “process-based” unconstitutionality, thus, is the only way in which both the governments and parliamentarians can be held accountable for the undermining of Parliament; and the knowledge that they will be held accountable can act as a spur to improve the quality of law-making currently an offer. It remains to be seen whether — and how — the judiciary will take this up.
Gautam Bhatia is a Delhi-based advocate
The views expressed are personal