PARLIAMENT

PARLIAMENT

PRESIDENT

President is the constitutional head of the state and representative of republic ideals of the constitution of India. He is elected by an electoral college consisting of elected Members of Parliament and State legislatures.

Relevant Articles:

• Part V of Constitution: deals with union government and the President of India.
• Article 52: President as a head of state.
• Article 54: Election of President.
• Article 58: Qualification for election as President.
• Article 61: Procedure for Impeachment of the President.
• Article 72: Pardoning power of President.

 

Powers of President:

1. Legislative Powers:
   • Summoning Power: He summons or prorogues Parliament. (Article – 85)
   • Power to dissolve Lok Sabha: With the advice of PM or after completion of 5 years he dissolves the Lok Sabha (Article – 85).
   • Nominate: He nominates 12 members of the Rajya Sabha (Article – 80).
   • Disqualification of MPs: He consults the Election Commission on question of disqualification of MPs on matters other than defection.
   • Ordinance Power: He promulgates the ordinance. (Article – 123)
2. Executive Powers:
   • Executive head: All the executive action of the Indian government is to be taken by his name.
   • Appointments: He appoints:
     • Attorney General of India,
     • Comptroller and Auditor General of India,
     • Chief and other election commissioners,
     • Chairman and members of UPSC,
     • Governors of States and
     • Chairman and members of Finance Commission.
   • Inter-state Relation: He appoints inter-state council.
   • Special Responsibility: He declares and can rule with the help of his agent in Scheduled Areas and Tribal Areas.
   • Reports: He causes to be laid down the reports of CAG, Finance Commission, UPSC, etc., in Parliament and also appoints commissions like NCSC, NCST, NCW, etc.
3. Judicial Powers:
   • Appointments: He appoints Chief Justice and Judges of Supreme Court and High Courts.
   • Relation with SC: He can take the advice of Supreme Court. (Article – 143)
   • Pardoning Power: Article 72 provides pardoning power to the President of India.
4. Financial Powers:
   • Money Bill (Article – 110): They can be introduced with prior recommendation of President.
   • Contingency fund of India: The contingency Fund of India is held by Secretary of Finance on behalf of President (Article – 267).
   • Union Budget: He causes to be laid down the Union Budget in the Parliament on behalf of the Government.
   • Finance Commission: He constitutes Finance Commission for devolution of financial resources from Union government to state government in every 5 years.
5. Diplomatic powers:
   • As a Head of State: He is the representative of India in International platforms.
   • International Treaties and agreements are approved by Parliament and are concluded in his name.
6. Military Powers: He is the supreme commander of the defence forces of India and appoints Chief of Army, Chief of Airforce, and Chief of Navy.
7. Pardoning powers: Article 72 President has pardoning power which comes under Pardon, Commutation, Remission, Respite, and Reprieve.
8. Emergency Powers: President through Executive deals with the Emergencies mentioned under Article 352 (National Emergency), Article 356 & 365 (President’s Rule), and Article 360 (Financial Emergency).
9. Situational Discretionary Powers:
   • He can decide appointment of PM when no party has a clear majority.
   • Dismiss the council of ministers when it loses majority in Lok Sabha.
   • Dissolve the Lok Sabha if the council of ministers has lost the support in the house.

 

Importance of President Post:

• Head of State: President is the constitutional head of state. He represents India as one nation.
• Part of Parliament: He is an important organ of the Parliament. All bills passed by the Lok Sabha and Rajya Sabha become law only after his assent.
• Hung Assembly: During the hung assembly, President uses his wisdom and invites the largest party/coalition to form a government and prove the majority in the house.
• Role in State Government: He appoints Governors and administers the Vth Schedule areas directly with his assistance.
• Judiciary: He appoints the high judicial officers and ensures separation of power.
• During Emergency: He has extraordinary powers during an emergency and, through the cabinet, rules the nation during a crisis.
• Continuity in Governance: He helps in peaceful transition of power from one political party to another after general elections to maintain governance in the nation.
• Appointments: He appoints heads of various constitutional and non-constitutional bodies to ensure efficient functioning without much political interference.

 

Drawbacks with India’s President Post:

• Ceremonial Head: President is the symbolic head of the nation with no real executive power (44th constitutional amendment act: President should follow the advice of CoM).
• ‘Rubber Stamp’ Post: Critics have termed the President as a rubber stamp of the government, as he needs to give assent to all executive decisions.
• Pardoning Power: Council of Ministers has used the Pardoning Power of the President for political gain, e.g., the convicted in the Rajiv Gandhi murder case.
• Nomination of Presidential Candidature: Often, the Presidential candidate is selected to appease a particular section of society.
• Office of Reward: The position is considered as a reward for associating with a political party throughout life.
• Indirect Representative: He is not chosen directly by the people of India.

 

ORDINANCE MAKING POWER OF PRESIDENT

Article 123 of the Indian Constitution grants the President of India the power to promulgate ordinances when either of the two Houses of the Parliament is not in session.

1. Against Parliamentary democracy:

• Misuse: Many times ordinances are issued by the government for lack of consensus in parliament or reluctance to face the legislature.
• Against Separation of Power: It violates the spirit of separation of power in governance.
• Prolonged re-promulgation of Ordinance: Raises concern about the authority of Parliament as the highest law-making body.
• Arbitrary power to executive: The law is announced without any debate and discussion and hence lacks the refinement that normal legislation possesses.
• Frequency of Ordinance increases: Between 1952 and 2014, there have been 637 ordinances, and in 2020 alone, there were twelve ordinances passed.

 

2. Support Parliamentary Democracy:

• Crisis Management: Ordinance making power is an extraordinary tool to deal with crises or matters of urgent need. Example: Government released three ordinances as part of the COVID-19 relief package to help farmers.
• To fulfill the grievances of Public: Governments also take the ordinance route to address matters of public concern. Example: Ordinance to freeze some section of IBC during the COVID-19 crisis.
• Life of Ordinance: Ordinances must be placed before both houses within six weeks from the first meeting of the houses, or they cease to exist.
• Checks and Balances: Ordinances are issued by the President based on the advice of the Union Cabinet and not based on discretion.
• Under Judicial review: Ordinance power of the President comes under judicial scrutiny as reflected in the following judgments:
  • RC Cooper vs. Union of India (1970): The President’s decision to promulgate an ordinance could be challenged.
  • DC Wadhwa vs. State of Bihar (1987): The legislative power of the executive to promulgate ordinances is to be used in exceptional circumstances.

The executive must show self-restraint and should use ordinance making power only in unforeseen urgent matters and not to evade legislative scrutiny and debates.

 

COMPARISON of IMPEACHMENT of PRESIDENT of USA & INDIA

	India	USA
Ground of Impeachment	Violation of Constitution (Article – 61)	Treason, bribery or other high crimes and misdemeanour.
Initiation of Impeachment Charge	Impeachment charge can be initiated either in Lok Sabha or in Rajya Sabha.	Starts in House of Representatives.
Minimum number of members of House required to support resolution	At least 1/4th members of the house.	Any member of House or entire House can vote to support it.
Deciding authority to accept the charge	Chairman of Rajya Sabha or Speaker of Lok Sabha	House Judiciary Committee
Vote needed in introductory house	Special Majority (2/3rd majority of Total Membership)	Simple Majority (>50% of total membership)
Voting	Voting takes place in the house where charges are initiated.	House of Representative debate and vote.
After voting in Introductory house	Report sent to other house and investigation of charges is done.	President is impeached and Report sent to Senate
Voting in 2nd house	Special Majority	Senate Trial (Jury of Senators headed by US Chief Justice) + Special Majority
Impeachment	President removed from office from day of passing of resolution in 2nd house.	Conviction and removal of President

 

Presidential System of Government

The head of the government leads an executive that is distinct from the legislature. Here, the head of the government and the head of the state are one and that is President. Also, a key feature is that the executive is not responsible to the legislature.

Features of the Presidential System

• The executive (President) can veto acts by the legislature.
• The President has a fixed tenure and cannot be removed by a vote of no-confidence in the legislature.
• The President is elected directly by the people.

 

Merits of Presidential System

• Separation of powers: There is clear and strict separation of power between different organs of state.
• Expert government: Since the executive need not be legislators, the President can choose experts in various fields to head relevant departments or ministries.
• Stability: This type of government is more stable. There is no political pressure on the president to make decisions.
• Less influence of the party system: Political parties do not attempt to dislodge the government since the tenure is fixed.

 

Demerits of Presidential System

• Less responsible executive: Since the legislature has no hold over the executive and the president, the head of the government can turn authoritarian.
• Deadlocks between executive and legislature: Since there is a more strict separation of powers here, there can be frequent tussles between both arms of the government, especially if the legislature is not dominated by the president’s political party. This can lead to erosion in efficiency because of wastage of time.
• Rigid government: Presidential systems are often accused of being rigid. It lacks flexibility.
• Spoils system: The system gives the president sweeping powers of patronage. This gives rise to the spoils system where people close to the president (relatives, business associates, etc.) get roles in the government.

 

PARLIAMENTARY SYSTEM OF GOVERNMENT

India chose a parliamentary form of government primarily because the constitution-makers were greatly influenced by the system in England. In this system, the parliament is generally supreme and the executive is responsible to the legislature. It is also known as the Cabinet form of government, and also ‘Responsible Government’.

 

Features of the parliamentary system

• Close relationship between the legislature and the executive: Here, the Prime Minister along with the Council of Ministers forms the executive and the Parliament is the legislature. The PM and the ministers are elected from the members of parliament, implying that the executive emerges out of the legislature.
• Executive responsible to the legislature: The executive is responsible to the legislature. There is a collective responsibility, that is, each minister’s responsibility is the responsibility of the whole Council.
• Dual executive: There are two executives — the real executive and the titular executive. The nominal executive is the head of state (president or monarch) while the real executive is the Prime Minister, who is the head of government.
• Secrecy of procedure: A prerequisite of this form of government is that cabinet proceedings are secret and not meant to be divulged to the public.
• Leadership of the Prime Minister: The leader of this form of government is the Prime Minister. Generally, the leader of the party that wins a majority in the lower house is appointed as the PM.
• Bicameral Legislature: Most parliamentary democracies follow a bicameral legislature.
• No fixed tenure: The term of the government depends on its majority support in the lower house.

 

Differences between the Indian and British systems

• Prime minister: In India, the PM can be from either the Rajya Sabha or the Lok Sabha. In Britain, the PM will always be from the lower house, the House of Commons.
• Speaker appointment: In Britain, the speaker, once appointed, formally resigns from his/her political party (once a speaker, always a speaker). In India, the speaker continues to be a member of his/her party though he/she is expected to be impartial in the proceedings.
• Shadow cabinet: The concept of a shadow cabinet is absent in India. In Britain, the opposition forms a shadow cabinet that scrutinizes the actions and policies of the government.

 

Merits of Parliamentary System

• Better coordination between the executive and the legislature: Since the executive is a part of the legislature, and generally the majority of the legislature supports the government, it is easier to pass laws and implement them.
• Prevents authoritarianism: Since the executive is responsible to the legislature, and can vote it out in a motion of no confidence, there is no authoritarianism. Also, unlike the presidential system, power is not concentrated in one hand.
• Responsible government: The members of the legislature can ask questions and discuss matters of public interest and put pressure on the government. The parliament can check the activities of the executive.
• Representing diverse groups: In this system, the parliament offers representation to diverse groups of the country. This is especially important for a country like India.
• Flexibility: There is flexibility in the system as the PM can be changed easily if needed. During the Second World War, the British PM Neville Chamberlain was replaced by Winston Churchill. This is unlike the presidential system where he/she can be replaced only after the entire term or in the case of impeachment/incapacity.

 

Disadvantages of Parliamentary System

• No separation of powers: This is especially true if the government has a good majority in the house. Also, because of anti-defection rules, legislators cannot exercise their free will and vote as per their understanding and opinions. They have to follow the party whip.
• Unqualified legislators: The system creates legislators whose intention is to enter the executive only. They are largely unqualified to legislate.
• Instability: Coalition governments are generally quite unstable and short-lived. Because of this, the executive has to focus on how to stay in power rather than worry about the state of affairs/welfare of the people.
• Ministers: The executive should belong to the ruling party. This rules out the hiring of industry experts for the job.
• Failure to take a prompt decision: Since there is no fixed tenure enjoyed by the Council of Ministers, it often hesitates from taking bold and long-term policy decisions.
• Party politics: Party politics is more evident in the parliamentary system where partisan interests drive politicians more than national interests.
• Control by the bureaucracy: Civil servants exercise a lot of power. They advise the ministers on various matters and are also not responsible to the legislature.

 

Comparison of Presidential and Parliamentary Systems

Basis	Parliamentary	Presidential
Executive	Dual	Single
Accountability	Executive accountable to legislature	Executive not accountable to legislature
Ministers	Only from among MPs	People outside the legislature can be appointed
Dissolution of lower house	PM can dissolve before the expiry of the term	President cannot dissolve
Tenure	Not fixed	Fixed

 

President is like the queen of Britain as said by “BR Ambedkar” who reigns the country. Therefore, this constitutional office is of utmost importance and the president’s personality has to play a role in using it effectively.

 

PARDONING POWERS

The Governor and President’s pardoning power acts as a safety valve in exceptional cases where the judicial system fails to deliver a morally or politically acceptable result. Pardoning powers are provided under Article 72 to the President of India and Article 161 to the Governor.

Judicial Pronouncements

1. Maru Ram v Union of India (1981): The Supreme Court ruled that the advice of the Council of Ministers is binding on the President while exercising pardoning powers.
2. Epuru Sudhakar & Anr vs Govt. Of A.P. & Ors (2006): The Supreme Court ruled that the Pardoning power of the President and Governor can be brought under Judicial Review under the following circumstances:
   • The order has been passed without application of mind.
   • The order is for mala fide.
   • The order has been passed on extraneous or wholly irrelevant grounds.
   • Relevant material has been kept out of consideration.
   • The order suffers from arbitrariness. 
3. Union of India versus Sriharan 2015 (Rajiv Gandhi Assassination Case): The Supreme Court noted that the Governor cannot reject the state’s recommendation, but there is no time prescribed to take a decision.
4. Supreme Court Verdicts:

Expanded Powers: Governors can pardon prisoners, including death row ones, and the advice of the appropriate government binds the Head of the State.

• Governor can pardon the prisoners even before they have completed a minimum of 14 years of a prison sentence.
• Bench also held that Governor’s power to pardon overrides a provision given under Section 433A of the Code of Criminal Procedure.
• Section 433A mandates that the sentence of a prisoner can be remitted only after 14 years of jail.
• Bench observed that Section 433-A of the Code cannot and does not affect the constitutional power of the President or Governor to grant pardon under Articles 72 or 161 of the Constitution.

Perarivalan Case 2021: The advice of the State Cabinet is binding on the Governor in matters relating to commutation/remission of sentences under Article 161. In this case, the Governor’s referral of the case to the President is a breach of Article 161, which mandates that the governor is bound by the advice of the State Cabinet.

 

Nature of Orders that can be issued by the President:

• Pardon: It removes both the sentence and the conviction and completely declares the convict free from all sentences, punishments, and disqualifications.
• Reprieve: It stays the execution for a temporary period.
• Respite: Awarding a lesser punishment on some special grounds. For example, the pregnancy of women offenders.
• Remission: Reduction of the sentence without changing the nature or the character of the punishment awarded by the court.
• Commute: Substitution of one form of punishment with a lighter form of punishment.

 

Differences between the Indian President, Governor, and US President’s Powers

Power	Indian President	Indian Governors	US President
Pardon	President can pardon death sentences	Governors cannot pardon death sentences	President has constitutional right to pardon or commute
Court Martial	President can pardon sentences inflicted by court martial	Governors have no such powers	US President can pardon or commute court martials
Legal Domain	He can pardon in cases of Union law	He can pardon in cases of only State law. (Even if state law prescribes death sentence, the power to grant pardon lies with the President.)	He can only pardon those punished under federal crimes and not state crimes
Executive Restraint	Has to act on advice of Union Cabinet	Has to act on advice of State Cabinet	No such advice required
Judicial Review	Under Judicial review to check cases of malafide intentions.	Under Judicial review to check cases of malafide intentions.	Not under any Judicial Review, but can be impeached.
Subsequent Trials	No such trials.	No such trials.	Those pardoned can still be tried under State laws.

 

Limitations/Issues:

• No Free Will of President: The President must act on the advice of the council of ministers in taking up mercy petitions.
• Overriding Power of Executive: Once returned after reconsideration, the President has to accept it without protest.
• Judicial Review: Judiciary can always overturn a decision for the purpose of ruling out any arbitrariness.
• Low Disposal Rate: 94% of all the mercy petitions were disposed of in the first 26 years, while a mere 6% were disposed of in the 43 years after that.
• Politicized: Since acts are guided by cabinet advice, the decisions can be of populist nature.
• Against Judicial Pronouncements: Pardons can be contrary to the decision pronounced by the judiciary and may neglect the question of justice. Example: President Pratibha Patil pardoned almost 30 death penalties pronounced by the judiciary.

 

VICE-PRESIDENT

According to the Constitution of India, the office of Vice-President is the second highest constitutional post in India. The Vice-President is the ex-officio chairman of the Rajya Sabha. His role is complementary to that of the President of the Republic of India. This office is modeled on the lines of the American Vice-President.

Relevant Articles:

• Art 63: There shall be a Vice-President of India.
• Art 64: The V-P shall be ex-officio Chairman of the Council of States and shall not hold any other office of profit.
• Art 65: The V-P to act as President or to discharge his functions during casual vacancies in the office, or during the absence of the President.
• Art 66: Election of V-P, electoral college consisting of members of both Houses of Parliament + system of proportional representation by means of a single transferable vote + voting by secret ballot.
• Art 67: The Vice-President shall hold office for a term of 5 years.

 

Comparison Between Indian and American Vice President:

Parameters	Indian Vice-President	American Vice-President
Function	Ex-officio chairman of Rajya Sabha	Shall be President of the Senate
Roles	Nominal roles	Statutory member of the National Security Council, plays a significant role in national security matters
In case of vacant seat of President	Hold office of President only up to 6 months till next President is elected.	He/she succeeds to the presidency when it falls vacant, and remains President for the unexpired term of his predecessor.
Title	“His Superfluous Highness” |	“A heartbeat away from the presidency”

 

Functions and Role

1. Presiding Officer: As the Presiding Officer, the Chairman of the Rajya Sabha is the unchallenged guardian of the prestige and dignity of the House.
2. Principal Spokesman of the House: The Chairman is also the principal spokesman of the House and represents its collective voice to the outside world.
3. Role in the Deliberations of the House: Allowing members to speak and ask questions impartially to discuss matters of public importance.
4. Maintenance of Order in the House: He ensures that the proceedings of the House are conducted in accordance with the relevant constitutional provisions, rules, practices, and conventions, and that decorum is maintained in the House.
5. Casting of Vote: The V-P is not a member of the RS, so he/she cannot vote in the House. But, in case of a tie, he exercises his casting vote so that a final decision can be reached.
6. Right of the Chairman to interpret the Constitution and Rules: Right to interpret the Constitution and rules relating to the House; no one can enter into any argument or controversy with the Chairman over such interpretation.
7. Vice-President to act as President: He acts as President in times of vacancy of office due to any contingency.
   • When President Dr. Zakir Hussain died in office, Vice-President V.V. Giri acted as the President.
   • When President Fakruddin Ali Ahmed died in office, Vice-President B.D. Jatti acted as the President.

 

Power of Vice President

• Powers relating to Bills passed in Rajya Sabha: He corrects patent errors in a Bill after it has been passed by the House and makes other changes in the Bill consequential to the amendments accepted by the House.
• Powers relating to the Rajya Sabha: The RS Secretariat functions under the control and direction of the Chairman. Admission to various galleries, including the Press Gallery, is regulated under the direction of the Chairman.
• Duties conferred on the Chairman: For instance, rules made under the Salary, Allowances and Pension of Members of Parliament Act, 1954, do not take effect until they are approved and confirmed by the Chairman and the Speaker.

 

Limitations with post of Vice-President

1. Institutional Limitations
   • Just a nominal head: His powers and functions are confined to a limited domain and do not have any concrete value.
   • No removal reason: No reason or cause for removal of the V-P has been mentioned in the constitution.
   • No role of member of State legislature in election: Members of State Legislatures are not invited in the election of the V-P, while he represents states in the Upper House.
2. Administrative Limitations
   • Not so impartial: The Vice-President, through his oversight of Rajya Sabha functions, can be biased towards those favoring his ideologies.
   • No power to vote on his removal resolution: Chairman of RS cannot vote when the resolution for his removal is under consideration, while the speaker of LS can vote in the first instance.

 

Way forward:

• Non Partisan Behaviour: Once they enter the office, they are to act independent of all political bias and uphold the Constitution.
• Allow Dissent: The Vice-President must allow the opposition parties to present their views and express their dissent against the government, as freely and frankly as possible.

V-P is second only to the President. His neutrality, and non-partisanship, can go a long way in firming the roots of the system of parliamentary democracy in India. His dignity, and public stature, should be subject to the criteria pertaining to their performance of their Constitutional duties, and not on the basis of what political parties he belonged to, or his past ideological background.

 

RAJYA SABHA

The Rajya Sabha or the ‘Council of States’ is the second chamber of the Indian parliament. It came into being in 1952 whose origins can be traced back to Montague-Chelmsford Reforms, 1919. Features: Permanent house + Revisionary house + Offers a degree of continuity + Means to institutionalize the federal principle.

Relevant Articles:

• Article 80: Lays down the maximum strength of Rajya Sabha as 250, out of which 12 members are nominated.
• Article 84: Lays down qualifications for its members (Indian Citizen + > 30 yrs + Qualifications as per law passed (if any)).
• Article 102: Deals with disqualifications (office of profit + unsound mind + undischarged insolvent + not a citizen of India + disqualified by law).

 

Arguments in favour of having a Rajya Sabha:

1. Federal Equilibrium: Rajya Sabha plays a role in protecting the interests of the states against the undue interference of the Centre.
2. Checks And Balances:
   • Rajya Sabha acts as a safety valve within the legislature itself, by blocking controversial Bills.
   • It acts as a revisionary house.
   • When the ruling dispensation has a brute majority in the Lok Sabha, Rajya Sabha can prevent the government of the day from exercising authoritarianism.
3. Provides Representation:
   • To states, as another unit of the federation.
   • To experts like scientists, artists, sportsmen, etc., who rarely face electoral politics.
   • To the small and regional parties to present their views.

 

1. Debates and Deliberations:
   • Rajya Sabha enables a second and reflective expression of representative opinion.
   • Rajya Sabha helps in debating major issues of public importance.
   • Rajya Sabha helps initiate proposals for public policy, e.g., Insolvency and Bankruptcy Code (Second Amendment) Bill, 2020.
   • Dr. Sarvepalli Radhakrishnan: Parliament is not only a legislative but a deliberative body holding high-quality debates on important issues.
2. Continuum of Legislation: Rajya Sabha is a permanent and continuous house. Hence, it helps in providing continuity to the legislature during times of elections or abrupt government change.
3. Special Powers of Rajya Sabha:

• Power to transfer a subject from the State List to the Union List for a specified period in the national interest (Article 249).
• To create additional All-India Services (Article 312).
• To endorse Emergency under Article 352 for a limited period when the Lok Sabha remains dissolved.

 

Arguments against having a Rajya Sabha:

1. In conflict with Lok Sabha:
   • Duplicacy: It largely duplicates the functions of the Lok Sabha. In 2006, in Kuldip Nayar v. Union of India and Others, the SC held that Rajya Sabha has turned out to be another chamber of the Parliament akin to the Lok Sabha, except for the mode of selection of its members.
   • Deadlock: The deadlock between both Houses on parliamentary matters stalls legislative works and causes policy paralysis.
2. Supremacy of Lok Sabha:
   • Certain Bills: In matters like Money Bills, where Rajya Sabha does not play any role. Even certain ordinary bills are bypassed as Money Bills or through the Ordinance route.
   • Annual Financial Statement: Decisions related to the Budget, where Rajya Sabha can only discuss it.
3. Powers & Accountability problem:
   • Lack of Powers: Rajya Sabha does not have sufficient powers in financial matters to bring any change.
   • Indirect Elections: Its members are not directly elected and hence are not directly accountable to the people.
   • People elected from other states: A person who does not belong to a state can contest the Rajya Sabha elections from that state, even if they are neither a resident nor a domicile.
   • Party Whip: Many members have to follow the Party Whip, which dilutes the purpose of bringing independent views and criticisms.
4. Cronyism and Patronage Appointments:
   • It has become a paradise for party fund-raisers, losers in elections, members from political families, crony capitalists, journalists, retired CEOs, and civil servants.
   • Many parties are now using the Rajya Sabha as a backdoor to get members elected, most of whom will not be able to win a Lok Sabha election.
   • Nominated members: Nominations are made by the government to satisfy the sentiments of followers of certain personalities, e.g., Lata Mangeshkar, Sachin Tendulkar, Rekha. Sachin and Rekha were both appointed in 2012, and the House has met 374 days since then, but the attendance of Sachin is a meagre 24 days while that of Rekha is just 18 days.

 

Reforms needed:

• Adequate Representation of states: Smaller states, especially in the Northeast, should be given adequate representation. For example, Uttar Pradesh has 31 members while Tripura has 1 member only.
• Establish Appointments Commission: In line with the UK model, to select nominated members. This will eliminate executive discretion.

• Section 3 of Representation of People Act, 1951: Introduced in 2003, allowing a person not belonging to a state to contest the Rajya Sabha elections from that state. Focus should be on selecting a representative well-versed with the state’s situation which they are representing.
• Time to Speak in Rajya Sabha: Currently, independent or nominated members and MPs from smaller parties get less time to speak in the House. This hinders expert opinions from coming to the forefront.
• Working Days: A mechanism should be crafted to ensure at least 120 days of proceedings in the Rajya Sabha each year.
• Agnihotri Committee (2018): Recommendations on Rules of Rajya Sabha should be considered to reduce Parliamentary disruptions.
• Improved Research Capabilities: MPs should be provided with personal assistants who have “research capabilities.” This will improve debate discussions and hence legislation quality.
• Independence of MPs: MPs of the House have sought more freedom for lawmakers from party whips or directives.

 

Rajya Sabha: Rationale for Indirect elections

• Frequent Elections: One-third of members in Rajya Sabha are retired every two years, making frequent elections a difficult task.
• Huge Cost and Machinery: Direct elections involve high financial costs and require substantial machinery to conduct elections across the nation.
• Expertise and Experience: It provides an opportunity for experts and experienced people who rarely face electoral politics. The purpose of Rajya Sabha is to attract and accommodate such experts and politically neutral persons of high talent.
• Distinction between Lok Sabha and Rajya Sabha: Direct elections could lead people to vote on similar agendas as those of Lok Sabha elections, which may dilute the distinction between the two houses.
• Voice of States: Indirect election ensures the voice of states in the Rajya Sabha.

 

Rajya Sabha Representation:

• Representation of States: Members are elected by the elected members of state legislative assemblies.
• Representation of Union Territories: Members of Rajya Sabha belonging to Union Territories are indirectly elected by members of an electoral college constituted for this purpose.
• Representation of Nominated Members: 12 people are nominated by the President in Rajya Sabha for their contribution and expertise in the fields of Science, Art, Literature, and Social service.

Even through the ups and downs of Indian politics, the Rajya Sabha along with the Lok Sabha, has been a flag-bearer of the sovereign, socialist, secular, democratic republic called India.

 

PARLIAMENTARY SCRUTINY & ACCOUNTABILITY

The Parliament in India was envisaged as a representative institution playing a key role in social and political unity. Being an elected body, the functions of Parliament range from lawmaking and oversight of the executive to scrutiny of legislations. Referring a Bill to the Parliamentary Committee, holding discussions in Parliament are some of the major parts of parliamentary scrutiny apart from referring to expert groups.

Data and Current Incidences Farm law protest: The Farm Bills passed by Parliament have evoked a scale of protest unforeseen by the government. The repeal of laws passed by the Parliament only shows a serious lapse in the management of legislative work. Hasty passing of Bill: During the 2019 Budget Session, a total of 35 Bills were passed over 37 sittings, a record high, which shows a lack of discussion in parliament. Lack of scrutiny: The number of bills referred to the committees for scrutiny has declined drastically, from 71% in the 15th LS to 25% in the 16th LS, including zero bills referred in 2020. Important Bills left out: Some of the most momentous Acts of Parliament in recent years such as the radical overhaul of Article 370 were not processed by any House committee.

 

Example of the Bills made better by suggestions of committees:

• The Protection of Plant Varieties and Farmers’ Rights Bill 1999: This Bill was meant to develop new varieties of plants and protect the rights of farmers and breeders. The committee made many improvements by bringing greater clarity into various terms and concepts.
• The Seeds Bill, 2004: The Standing Committee on Agriculture, which obtained views from diverse sources through consultation with a wide range of experts, research organisations, and farmers, made significant improvements in the Bill; as a result, there was a better law on seeds.
• Other important Bills: The same applied to the Companies (Amendment) Bill, the Information Technology Bill, and the Goods and Services Tax Bill.

 

Need for Parliamentary Scrutiny:

1. Political:
   • Avoid hasty legislation: Referring Bills to committees avoids hasty passing.
   • Checks and balances: The Upper House was designed as part of the checks and balances. Allowing more time for scrutiny keeps a check on executives.
   • Better decision making: Scrutiny through committee meetings held behind closed doors, where members are not bound by party whips, helps uphold the ethos of debate and discussion.
2. Social:
   • More inclusion: Scrutiny through parliamentary committees involving members from different political parties and diverse social backgrounds leads to inclusive decision-making.
   • More benefit to citizens: Committees in Parliament do detailed discussions and analyses on proposed laws, ensuring laws benefit the citizens.
3. Legal:
   • Helpful in judicial proceedings: The debates and discussions aid the courts in interpreting laws, ensuring clarity and context.
   • Improve quality of legislation: Public consultation and committee scrutiny improve the content and quality of legislation.

 

1. Administrative:
   • Policy challenges: Technological and economic changes bring new policy challenges that require expert assistance.
   • Easy to implement: Legislation discussed thoroughly and grounded in the reality of the impacted population leads to better implementation.
2. Economical:
   • Help in Economic growth: Scrutiny through Estimates Committee, which does a detailed examination of budget estimates, brings better alternative policies for higher efficiency and economic growth.
   • Scrutiny of Budget: The Standing Committee scrutinises the government budget, reducing the chance of misspending and validating the government’s spending statistics.

 

Reasons for Lack of Scrutiny:

• Lack of will of Centre: The government used its majority in both Houses and steamrolled Bills with minimal discussion.
• Hurry to pass a Bill: Ministers are often reluctant to send Bills to committees for scrutiny as they are in a rush to pass them.
• Frequent disruption in Parliament: There is no alternative platform for dialogue between the Government and Opposition, prompting the Opposition to resort to disruptions for attention.
• Lack of opposition support: The government claimed that committees were not formed because other parties had not sent nominees for them.
• Wrong use of Ordinance route: Despite a majority in LS, the average number of ordinances increased from 6/year under the previous government to 11/year under the current government.
• Live telecasts and media attention: This motivates MPs to take stands on issues to garner public attention rather than engage in meaningful discussion.
• Money bill route: Legislation not fitting the Money Bill category was passed as such, bypassing Rajya Sabha deliberation.
• Speaker’s non-partisan role: Few Speakers, like G.V. Mavalankar and P.A. Sangma, have acted against party lines to maintain House autonomy.

 

Methods and Instruments available to hold Parliament Accountable and Scrutinized:

1. For Legislature:
   • Collective responsibility: Political Executive or Ministerial accountability to Parliament as outlined in Article 75.
   • Procedural devices in Parliament: Instruments like Questions, Calling Attention, and Half-an-Hour Discussions ensure parliamentary oversight of administrative actions. For instance, in the 16th LS, the question hour made up 77% of scheduled time, while in RS, it was 47%.
   • Financial accountability: Committees like Public Accounts Committee, Estimates Committee, and Committee on Public Undertakings help in financial scrutiny.
   • Threat of ‘no confidence’ over poor policy decisions: The House can remove the Government with a majority vote if the ruling party loses support.
2. For Judiciary:
   • Judicial Review: Ensures laws comply with constitutional provisions. Example: In 2015, the SC struck down Section 66(A) of the IT Act, 2000, which penalized sending “offensive” messages.
   • Judicial Activism: Upholds constitutional principles when the executive or legislature fails. Example: SC and HCs’ proactive role during COVID-19.
3. For Executives:
   • Financial accountability: CAG audits government financial activities to expose mismanagement. Example: Vinod Rai’s CAG report exposing 2G and Coal scams.
   • Information accountability: CIC under RTI Act can provide important information to hold the government accountable and to scrutinize government actions.

 

Measures required to restore the credibility and efficiency of the Parliament:

• Voters pressure: Voters need to put more pressure on their Parliamentarians to engage in debates and hold them accountable for low attendance, participation, and discussion.
• Speaker non-partisan role: The Speaker should not have a party allegiance. A convention similar to Britain’s, where the Speaker resigns from their party, can be considered.
• Electoral reforms: To make politicians accountable for their work in Parliament, a report card should be created for each MP based on their proactive or inactive role.
• Responsible opposition: An opposition that focuses on constructive debates and minimal disruptions to promote discussion and responsible legislation.
• Avoid overlapping functions: Streamline the functions of Parliamentary Committees to increase their efficiency, enabling more Bills to be referred for scrutiny.

 

Way Forward

It would be counterproductive and dictatorial if many bills pass without scrutiny. To avoid this:

• Bringing down the number of committees: The NCRWC suggests reducing the number of Standing Committees, entrusting them with added financial oversight responsibilities, and eliminating redundant finance committees to prevent work overlap.
• Effective utilization of Parliamentary Committees: Strengthen Parliamentary Committees as deliberative bodies to ensure oversight.

The Indian Parliament, as the highest legislative office, owes its accountability to the people of India. Constructive debates, deliberations, disputes, and dialogue are the essence of Indian democracy, and Parliament should embody this principle.

 

DIFFERENT TYPES OF FUNDS

There are three main types of funds mentioned in the Constitution:

• Consolidated Fund of India
• Contingency Fund of India
• Public Account

 

Consolidated Fund of India

Created under Article 266 of the Indian Constitution, this fund includes all receipts and debits all payments, such as:

• All revenues received by the Government of India.
• All loans raised by the Government through treasury bills, loans, or advances.
• Repayment of loans to the government forms part of this fund.

Other information:

1. Payments made out of it: All legally authorized government payments, like repayment of debt or giving loans to state governments, are made from this fund.
2. Appropriation of money: No money can be issued or drawn from this fund except in accordance with parliamentary law.
3. Disbursements charged: Disbursements ‘charged’ on the Consolidated Fund of India are not put to vote in the Parliament.

• This includes the salary and allowances of the President, Speaker and Deputy Speaker of the Lok Sabha, Chairman and Deputy Chairman of the Rajya Sabha, salaries and allowances of Supreme Court judges, and pensions of Supreme Court and High Court judges.

 

Public Account of India

All public money (other than those credited to the Consolidated Fund of India) received by or on behalf of the Government of India is credited to the Public Account of India. It is established under Article 266(2) of the Constitution.

• Public money credited: Includes provident fund deposits, judicial deposits, savings bank deposits, departmental deposits, remittances, etc.
• Executive action: This account is managed through executive action, allowing payments without parliamentary approval, primarily for banking transactions.
• Funds owned by: Public Account funds do not belong to the Government and must be returned to the individuals or authorities who deposited them.
• Parliamentary authorization: Not required except when funds are withdrawn from the Consolidated Fund and kept in the Public Account for specific expenditures.

 

Contingency Fund of India

Article 267 of the Constitution authorizes Parliament to establish a ‘Contingency Fund of India’ for unforeseen expenditures. The Contingency Fund of India Act was enacted in 1950.

• At the disposal of: The President, who can make advances for unforeseen expenses pending parliamentary authorization.
• Held by: The fund is managed by the finance secretary on behalf of the President and operates through executive action.
• Approval: Parliamentary approval is sought post-expenditure, and an equivalent amount is drawn from the Consolidated Fund to reimburse the Contingency Fund.
• Corpus: Currently authorized at ₹500 crore.

 

CESS

Cess is an additional tax imposed by the central government for specific purposes and collected until sufficient funds are raised.

• Imposed on: All taxpayers in India.
• Paid to: The Consolidated Fund of India, but used exclusively for designated purposes.

Data The share of cesses and surcharges in the Centre’s gross tax revenue increased from 10.4% in 2011-12 to 19.9% in 2020-21.

 

Issues with Cess:

1. Multiplicity of cesses: GST aimed to incorporate various cesses, but some remain active, and new ones have been introduced post-GST.
2. Use of cess: Concerns about its allocation and effectiveness persist.

• Misutilization: For example, in the instance of the research and development cess, “the proceeds are being partly utilized to finance the revenue deficit of the Government over the years” [CAG].
• Under-utilisation: An amount of Rs 10,157 crore collected through the road and infrastructure cess remained unutilized in the 2018-19 year [CAG].
• Vague purpose: Financing of national highways, basic education, clean energy, environment, infrastructure projects, etc. These are broad categories of expenditure rather than specific purposes.

1. Discretion of government: Some cess legislations are seen to leave the appropriation and utilization to the discretion of the Union Government. Further, the release of funds to the concerned agency is subject to the approval/initiation of the Union Government, which also decides on the quantum of funds to be disbursed.
2. Inter-changeable usage of cess and surcharge: Charging provisions in some statutes use terms surcharge and cess interchangeably. For example, the Finance Act, 2016 imposed “a surcharge to be called Krishi Kalyan Cess” to fulfill the Government’s commitment to farmer welfare.
3. Against federal principles: The Union Government has imposed cesses for purposes such as hygiene, agriculture, and rural roads, all of which fall within the State List.
4. Issues with GST Cess: The GST Cess is levied to compensate State Governments for any losses during the first five years of GST implementation. This is contrary to the typical practice where cess proceeds are not shared with State Governments.
5. Reduction in devolution to States: Cesses have reduced the estimated divisible pool over the next five years by about ₹32 lakh crore to ₹103 lakh crore from ₹135.4 lakh crore [15th Finance Commission].

 

Way Forward

1. Imposition [Vidhi Centre for Legal Policy]

• State subjects: The Union Government should not levy cesses for purposes in the State List, such as health.
• Levy in exceptional circumstances: Cesses may be imposed in exceptional circumstances like natural calamities for additional revenue. Other cesses should be abolished to maintain this ceiling.
• Constitutional validity: Cesses must be specifically and clearly stated in the statute, including the purpose for its imposition and the scheme it will fund.

2. Transparency and Rationalisation [Vidhi Centre for Legal Policy]

• Clarity about cess: Budget documents should detail the targeted collection amount and explain why regular taxes cannot meet funding needs.
• Review: Cesses should be periodically reviewed to compare the amount collected versus the amount utilized.
• Share of States: States should receive a share in cess proceeds based on Finance Commission recommendations.

3. Abolition [Vidhi Centre for Legal Policy]

• Inefficient cesses: Cesses generating less than ₹50 crore annually should be abolished due to inefficiency.
• Term: Cesses should be limited to a five-year term, extendable only if justified by the relevant ministry/department, and abolished after one extension.
• Review and sunset clause: The Central Government should include an overriding review clause as well as sunset clauses in the relevant legislations imposing cesses. 

4. Sarkaria Commission: Cesses must be confined to limited periods and for specific purposes.

 

International practices:

• World Bank: Recommends that earmarked/hypothecated taxes (international equivalents of cesses) work best when the immediate beneficiary contributes towards the tax.
• WHO: Earmarking practices are effective for countries prioritizing specific policies without relying solely on general budgeting processes.

 

SURCHARGE

A surcharge is an additional charge imposed on an existing tax, applied to the tax already paid.

Features of surcharge:

• Imposed by Parliament: For “the purposes of the Union.”
• GST limitation: Surcharges cannot be imposed above GST.
• Article 270: Proceeds from surcharges do not need to be shared with State Governments.
• Purpose flexibility: Unlike cesses, surcharges do not need a stated purpose at the time of levy and can be used at the Union’s discretion.

 

Issues with Surcharge:

• Not temporary: Surcharges have been continuously levied since the adoption of the Constitution, except in 1998-99, and are not temporary measures.

 

Way Forward:

• Rationalisation of income tax rates: Instead of surcharges, rationalizing income tax rates could achieve similar objectives without using surcharges as proxies.
• Temporary levy: Surcharges should be temporary and used sparingly for limited periods.
• Sunset clauses: Include clauses in legislation to prevent surcharges from becoming permanent features.
• Distinction between cess and surcharge: It is important to keep in mind their differences and not use them interchangeably.

 

CABINET COMMITTEES

To decrease the workload of the cabinet, the Prime Minister can form groups of 3-8 cabinet ministers to examine policy matters in depth. These groups are known as Cabinet Committees. Cabinet Committees usually include only cabinet members, but non-cabinet ministers are not debarred from their membership.

 

Data Court Cases: Ashok Kumar Jain vs PIO (Ministry of Power) — The decisions of CCoA come under Section 8(1)(i), which deals with the secrecy of decisions. Kalpana Mehta v. Union of India (2018): “Parliamentary Standing Committee Reports or any Parliamentary Committee Report can be taken judicial notice of and regarded as admissible in evidence, but it can neither be impinged nor challenged nor its validity can be called into question.” Features: Most of them are headed by the PM. Generally consist of Cabinet ministers. Extra-constitutional (not mentioned in the Constitution). Established under the Transaction of Business Rule, 1961. Article 77(3): “The President shall make rules for the more convenient transaction of the business of the GoI, and for the allocation among Ministers of the said business.”

 

Advantages of Cabinet Committees:

• Reduce workload of Cabinet: Help in taking decisions efficiently and reduce the Cabinet’s workload.
• Get experts’ opinion: Facilitate in-depth examination and expert advice on policy formulation.
• Collective responsibility: Safeguard collective responsibility, ensuring decisions reflect government attitudes.
• Efficiency: Facilitate efficient use of time and human resources, based on division of labor.
• Coordination: Foster inter-governmental and inter-departmental coordination.

 

• Check and balance: Prevent arbitrary ministerial actions and ensure PM’s oversight.
• Inter-ministerial cooperation: Involve multiple ministries for legislative issues.
• Policy discussion and agenda setting: Finalize policies and improve policy dialogue.
• Representation: Recommend based on various interests before decision-making.

 

Criticism of Cabinet Committees:

• Declining Role: Committees’ role has declined as bills, like the Farm Bills, bypass consultation.
• Decreasing in number: Fewer ad-hoc committees lead to inadequate policy analysis.
• Role of PM: The PM heads most committees, limiting other ministers’ roles.
• Irregular Meetings: Committees may not meet regularly.
• Political Ideology: Experts’ views considered only when aligned with government ideology.
• Exclusion of Ministers of states: Ministers of States (MoS) (independent charge) are rarely appointed.
• Conflict of interest cases due to overarching jurisdiction: Some ministries hold significant power, e.g., MHA and MoF both regulating NGO funding.
• Power game between ministries in deadlock situations: Issues arise when a single subject overlaps multiple ministries, leading to bureaucratic inertia in decision-making.
• No substantive discussion of issues: Committees often mold issues instead of addressing real problems, hindering effective consideration.

 

Way Forward:

1. Role of PM: PM should chair only critical committees.
2. Balance between GoM and Cabinet Committee: Balance is needed between the roles of Groups of Ministries and Cabinet Committees to ensure efficient governance.
3. Best International Practices: Incorporate practices from New Zealand and Britain to maintain secrecy and prevent market speculation (e.g., market speculation before PLI incentive declaration).
4. Regular Meetings: Ensure regular meetings of Cabinet Committees.
5. Enrolment of experts: Promote non-political, expert ideas for better policy formulation.
6. Cabinet & Cabinet Committees: Their relationship should follow the principle of “Swim or Sink together.”

 

Note: Recently, two new Cabinet Committees were established: Cabinet Committee on Skill Development and Employment Cabinet Committee on Investment and Growth

 

Cabinet Committee on Skill Development and Employment:

Objectives:

• Centralised Command: Directs all policies, programs, and initiatives for skill development.
• Changing nature of jobs: Enhances workforce employability for new technology-driven economic growth (e.g., IR4.0).
• Demographic Dividend: Utilizes India’s 62.5% population aged 15-59 to harness the benefits of a demographic dividend.
• Demand and supply mismatch: Reduces gaps between skills required and available in various sectors.
• Result-oriented: Sets targets for timely implementation and reviews progress on skill development initiatives.

 

Cabinet Committee on Investment and Growth:

Objectives:

• Identification of Key areas: Identifies key projects worth Rs. 1000 crore or more for timely implementation and addresses other critical projects as specified by the committee.
• Tracking of Projects: To prescribe time limits for the issuance of requisite approvals and clearances by the Ministries/Departments in identified sectors.
• Efficiency: Helps in removing bottlenecks for investment in India.
• MSME: Boosts investment in the MSME sector of India, providing employment and growth for the economy.
• Sector Specific: Ensures sector-specific targets are set and achieved. For example, the ambitious plan to become the largest manufacturer of EVs by 2030 requires significant investment in the EV sector.
• Covid-19 Crisis: The pandemic weakened India’s economic base, necessitating fast and effective recovery investments.

 

Cabinet Committees play a crucial role in efficient governance, embracing the principle of “Minimum Government, Maximum Governance,” and serving as platforms for deliberative democracy.

PUBLIC ACCOUNTS COMMITTEE

In India’s parliamentary system, the legislature holds the power to ensure that appropriated funds are spent economically, judiciously, and as intended.

Although the Comptroller and Auditor General of India audits government accounts to ensure proper use, its reports are further scrutinized by the Public Accounts Committee (PAC). The PAC recently celebrated its 100th year of formation.

 

Historical Background:

1. Setup: Established in 1921 under the Montague Chelmsford Reforms.
2. Formed under GOI Act 1919: Authorized the Governor-General-in-Council to create such committees to audit government accounts and point out irregularities.
3. Function: Ensures expenditure aligns with authorized purposes.
4. GOI Act 1935: Required accounts and audit reports to be presented to the legislature, leading to the appointment of the PAC for audit scrutiny.
5. After Independence:
   • Constitution of India: The PAC is one of three key financial parliamentary committees, alongside the Estimates Committee and the Committee on Public Undertakings.

 

Constitutional Provisions:

• Article 105 (Parliamentary privileges) and Article 118 (Parliament’s authority to make procedural rules) grant parliamentary committees their mandates.
• Rule 308 of the LS Rules of Procedure and Conduct of Business: Establishes the PAC annually.
• Appointment of Chairman: Appointed by the Speaker of the Lok Sabha.
• Only an advisory body: It should be noted that the Committee is not an executive body; it can only make advisory recommendations.
• Members: It presently has 22 members, each elected for a one-year term (15 by the Lok Sabha Speaker and 7 by the Rajya Sabha Chairman).
• Minister cannot be a member: The PAC prohibits any Minister from being elected as a member since it was created to determine whether money allocated to the Government by Parliament was spent within the “scope of demand” or not.

 

Functions of PAC:

1. Examination of accounts: The main function of the committee is to examine the accounts and report of the CAG to ensure appropriations sanctioned by Parliament are spent by the executive within the scope of the demand. This includes:
   • Ensuring expenditure does not exceed the appropriation by Parliament.
   • Verifying that expenditure was incurred for its intended purpose.
   • Confirming that legally authorized officials spent the funds.
   • Ensuring the executive did not overlook parliamentary votes by adjusting expenditures in excess of other grants.
2. Implementation with efficiency: The committee examines if the approved policy has been implemented by the executive with maximum efficiency and economy.
3. Examine technicalities: Analyzes procedural technicalities employed in maintaining accounts.
4. Extension of functions: PAC functions extend to:
   • Examining income and expenditure statements of state corporations, trading, and manufacturing schemes.
   • Reviewing accounts of autonomous and semi-autonomous bodies.
   • Auditing stores and stocks checked by the Comptroller and Auditor General.

 

Importance of PAC:

1. Watchdog: Acts as a watchdog of the public purse by examining audit reports on appropriation and finance accounts.
2. Scrutinize: Verifies appropriation accounts to ensure:
   • Legal availability of funds.
   • Competent authority sanctions.
   • Adherence to procedural rules.
3. Increase efficiency by use of time: Committees meet throughout the year, compensating for time constraints in the House.
4. Provide expertise: Facilitates complex parliamentary deliberations by involving domain experts and officials.
5. Enforce accountability: Ensures budget appropriations and government accounts are checked.
6. Streamline efforts: Provides recommendations for efficient, economical policy implementation.

 

Public Accounts Committee – Controversies:

• Commonwealth Games case (2010): The PAC criticized the Congress-led UPA government for taking the games’ management out of government oversight, citing significant errors that almost resulted in “the biggest management failure.”
• Demonetisation issue (2016-17): Sumitra Mahajan, then Speaker of the Lok Sabha, expressed dissatisfaction with PAC Chairman K V Thomas’s remarks that the committee might bring PM Narendra Modi to explain demonetisation if responses from RBI Governor Urjit Patel and top finance officials were unsatisfactory. The PAC cannot finalize any report without unanimous agreement, leading to debates about the Chairman’s role.

 

Limitations of the Public Accounts Committee:

• Only does post-mortem: Primarily examines accounts after expenditure has occurred.
• Advisory functions: Most functions are advisory and not binding on ministries or authorities.
• Works on consensus, not majority: Decisions are taken by consensus, limiting dissent.
• No intervention: Cannot intervene in policy matters or day-to-day administration.
• Lack of power: Lacks authority to disallow departmental expenditures.
• No procedure for corrective actions: Highlights irregularities without mechanisms for enforcement.

 

Reforms needed in Public Accounts Committee:

• Redesignation: Consider renaming it the Public Accounts and Audit Committee to emphasize audit review.
• Interact with people: Engage directly with public input for more meaningful recommendations.
• Balance objective: Examine socio-economic outcomes to align resource use effectively.
• Constitute committee of chairpersons: A dedicated chairpersons’ committee for comprehensive PAC discussions.
• Common platform: Establish a unified platform for PACs across the Parliament and state legislatures for better coordination.
• Make committee more accountable and transparent: Implement suggestions for better accountability through presiding officers.

 

About the other two Financial Committees of Parliament:

1. The Committee on Estimates:

• Constitution: Formed in 1950, consisting of 30 members elected annually by the Lok Sabha.
• Chairperson: Appointed by the Speaker of the Lok Sabha; ministers are ineligible.
• Term of office: One year.
• Functions:

• To report on economies, improvements in organization, efficiency, or administrative reform consistent with the policies underlying the estimates.
• To suggest alternative policies for efficiency and economy in administration.
• To examine whether money is well allocated within the policy limits implied in the estimates.
• To recommend how estimates should be presented to Parliament.
• The Committee does not exercise its functions concerning Public Undertakings, as those are assigned to the Committee on Public Undertakings by the Rules of Procedure and Conduct of Business of the Lok Sabha or by the Speaker.

2. The Committee on Public Undertakings:

• Constitution: Composed of 22 members, with 15 elected by the Lok Sabha annually and 7 nominated by the Rajya Sabha, based on proportional representation.
• Chairperson: Appointed by the Speaker of the Lok Sabha from among the committee members. Ministers cannot be members.
• Term: Limited to one year.
• Functions:
  • Examines reports and accounts of specified Public Undertakings.
  • Reviews CAG reports on Public Undertakings.
  • Ensures that Public Undertakings are managed according to sound business and prudent practices.
  • Performs functions similar to those of the PAC and Estimates Committee related to Public Undertakings.

Conclusion

The PAC is deemed the “mother of all committees” for its oversight of public funds and fiscal policies, though its strengthening is necessary for improved functionality.

 

SPEAKER

Article 93 of the Constitution mandates the election of the Speaker, who leads the Lok Sabha. The Speaker’s role in India dates back to 1921, under the Government of India Act of 1919 (Montague-Chelmsford Reforms).

Provisions for Independence of Speaker:

• Security of tenure: Removal requires a resolution passed by an effective majority (more than 50% of total strength excluding vacancies).
• Salary and allowances: Paid from the Consolidated Fund of India.
• Restraint on Criticism: The Speaker’s actions and conduct cannot be criticized in the Lok Sabha except through a substantive motion.

 

Importance of Spealer/Role

1. With respect to Parliament:

• Guardian of Parliamentary conventions: The Speaker ensures the continuation of parliamentary traditions in India.
• Joint Sitting: The Speaker presides over joint sittings [Article 108].
• Powers w.r.t. Money Bill: The Speaker is solely responsible for endorsing Money Bills [Article 110(1)].
• Ensuring effectiveness of Committees: Appoints chairpersons of all parliamentary committees of the Lok Sabha and supervises their functioning. Example: Speakers like Shivraj Patil played a crucial role in initiating 17 departmental standing committees.

2. With respect to Lok Sabha:

• Maintains decorum in the House: Can take disciplinary action to ensure discipline, e.g., suspending MPs disrupting proceedings.
• Disqualification of members under Anti-defection Law: As per the 10th schedule, decides on the disqualification of legislators on grounds of defection.
• Resolves deadlock: Uses power to vote in the event of a tie.
• Final Interpreter of Rules of Procedure: Ensures the business of the House follows established rules.
• Safeguards Privileges of Members: Protects rights and privileges of Lok Sabha members (e.g., no arrests within the House without permission).
• Power to Adjourn the House: Can adjourn or suspend meetings in the absence of a quorum.
• Fix the Agenda of the House: In consultation with the business committee and the PM, sets meeting agendas.
• Permission to ask questions: Speaker’s permission is needed to question ministers, ensuring relevant discussions.
• Introduction of Bills: Bills, reports, and resolutions require Speaker’s permission.

3. Administrative Role:

• Head of the Secretariat: Leads the Lok Sabha Secretariat.
• Parliament House: Approves changes to the Parliament House and estate.
• Communication: Serves as the medium for communicating House decisions outside Parliament.
• Prescribes format: Determines how House proceedings are published.

4. Inter and Intra Parliamentary Relations:

• Chairman of the Indian Parliamentary Group: Connects Parliament of India with global legislative bodies.
• Other Legislative bodies’ conference: Chairs meetings with presiding officers of legislative bodies in India.

 

Importance/Need of Deputy Speaker:

Article 93 mandates the election of both the Speaker and Deputy Speaker by the Lok Sabha. The Deputy Speaker often comes from the opposition party.

1. With respect to Parliament

• Impartiality: Maintains impartiality and ensures smooth operation of Parliament. The Deputy Speaker, often from the opposition, ensures the government, led by the majority, remains accountable.
• Presides over Joint sittings: The Deputy Speaker can preside over joint sessions when the Speaker is absent.
• Chairman of Parliamentary committee: Automatically chairs any parliamentary committee he/she is appointed to.
• Resolves deadlock: Like the Speaker, the Deputy Speaker casts the deciding vote in a tie.

2. With respect to Lok Sabha:

• Ensures continuity: Under Article 95, performs Speaker duties when the position is vacant or the Speaker is absent.
• Interpreter of rules: Assumes the Speaker’s interpretative role when presiding.
• Final authority: No appeal can be made against rulings by the Deputy Speaker.
• Resignation of Speaker: The Speaker submits their resignation to the Deputy Speaker.

3. Others:

• Disqualification under the tenth schedule: Can conduct proceedings for disqualification if the Speaker’s position is vacant.
• Inclusive policymaking: Has headed committees like the Committee on Private Member Bills, promoting inclusivity.

\

Issues with Post of Speaker:

1. Impartiality: Political affiliations challenge impartiality, potentially favoring the party.
2. Disqualification of members: Criticism for discretionary use in anti-defection rulings.
   • Courts have challenged rulings, citing partisan actions in states like Uttarakhand and Arunachal Pradesh.
   • The 1992 Kihoto Hollohan case ruled the Speaker’s decisions subject to judicial review.
3. Discretionary power: Concerns over misuse in declaring Money Bills, e.g., Aadhar Bill.
4. Judicial Review in Money Bills: Speaker’s decisions on Money Bills are beyond judicial review.
5. Increased disruption: Lack of proactive action results in more disruptions and less time for key discussions.
6. Discretion in rules interpretation: The Speaker’s rule interpretations sometimes favor the ruling party.

 

Why the Speaker prefers to maintain party membership:

• Lack of Protection to office: The electoral system and conventions in India have not developed sufficient protection for the office, leading to reasons for Speakers to retain party membership.
• Elections: Elections are not always by consensus, with different parties fielding their own candidates.
• Next Term of Elections: All political parties campaign in the Speaker’s constituency.
• Bleak chances of Reappointment: Even if re-elected to the House, the Speaker’s office is still open for elections in India.

 

Way forward:

• Recommendations by the Supreme Court:
  • Provision of a ‘Permanent Tribunal’: Parliament could consider a constitutional amendment to replace the Speaker of the Lok Sabha and Legislative Assemblies with a permanent tribunal led by a retired Supreme Court or High Court judge for impartiality.
• Replicating the UK model: Once elected, the Speaker should give up all partisan affiliations, staying in office until retirement, irrespective of majority changes.
• On matters of Independence:
  • Case Study: Dr. N. Sanjiva Reddy, the Speaker of the fourth Lok Sabha, resigned from his political party.
  • V. S. Page Committee: Recommended allowing impartial and efficient Speakers to continue in office.
• Role of Speaker under 10th Schedule:
  • Dinesh Goswami Committee (1990): Proposed that disqualification should be decided by the President or Governor on the Election Commission’s advice.

To ensure that Inida improves its performance in Democracy Indes, it is important that we begin to holistically reform the Parliamentary structure, rightly beginning with the office of Speaker. The Speaker represents the House. House represents the nation. Hence, the speaker becomes a symbol of the nation’s freedom and liberty. Therefore he/she should be a person of outstanding ability and impartial in nature. 

 

WHIP

A whip is a written directive from a political party to its members for attendance during important votes or to vote in a specific way, originating from the British practice of “whipping in” members.

Constitutional Status:

• Not mentioned in the Constitution: The office of the whip is not in the Constitution or House Rules.
• Convention: Follows parliamentary traditions.

 

Functions of Whip:

• Smooth conduct of business: Ensures efficient House business.
• To gather support: Responsible for attendance and party support.
• Ensure discipline: Maintains party discipline in the House.

• Follow party line: Ensures MPs vote according to the party’s stance.
• Inform MPs: Keeps MPs updated on party positions and member sentiments.
• Provide prognosis: Identifies signs of discontent among MPs, informing party leaders.
• Counselor to party: Acts as an advisor to party members in the House.
• Act of binding force: Maintains internal party organization within Parliament.
• Provide direction to Speaker: Chief whip coordinates and manages parliamentary sessions and government business.

 

Types of Whips:

• One-line whip: Notifies members of an upcoming vote, allowing abstention.
• Two-line whip: Directs members to be present during voting.
• Three-line whip: Strictly instructs members to vote along party lines.

 

Importance of Whips in Our Political System:

• Vital link of party: Connects internal party structures within legislatures.
• Manager of parties: Ensures smooth functioning of Parliament and legislatures.
• Communication link: Links House leaders with ruling party members.
• Connects with opposition whips: Coordinates with whips of other parties on legislative matters.

 

Limitations of Whip:

1. Violation: MPs face expulsion under the Anti Defection Act for defying a whip.
   • Exception: If more than one-third of legislators vote against, splitting the party.
2. Non-applicability: Whips are not applicable in presidential elections or other cases where free voting is necessary.

 

Issues:

1. Against will: Whips restrict MPs’ individual judgment and opinion.
   • Solution: The UK’s “Free Vote” system allows MPs to vote freely on specific issues.
2. Reduces to mere headcount: Fear of anti-defection laws reduces MPs’ roles to headcounts.
3. Forced consensus: Leads to “forced consensus” on bills.
4. Curb on inclusive debate: Fear of losing seats curbs open discussions in Parliament.
5. Affect quality of legislation: Members often support or oppose legislation based on party lines, regardless of the content’s merits.

 

Current Incident:

1. Rajasthan Case: Congress chief whip in the Rajasthan Legislative Assembly moved the SC for direction to maintain status quo in disqualification proceedings against ousted MLAs under the anti-defection law.
   • Kihoto Hollohan case 1992: SC ruled that courts should not intervene in disqualification proceedings before a Speaker’s final decision.
2. Karnataka Case: SC stated that dissident legislators in Karnataka cannot be compelled to attend the Assembly session, aligning with previous rulings in the Kihoto Hollohan case.

 

Comparison with International Practices:

1. USA:
   • Role: The function of the party whip is to measure how many MPs are in favour of the bill and how many are against it. After measuring, whip tries to persuade the members to vote on the party lines.
   • Implications: In USA candidates for a particular seat are chosen by primary election, so they can provide contrary view as per their regional interest
2. UK:
   • Role: In UK, the violation of the 3-line whip results into the expulsion of the member from the party, but he/she may continue as an independent Member of Parliament until the party admits the member back into the party.
   • Implications: The political structure of the government is so that it would be in very exceptional circumstances when an MP can differ from the lines of party and whip system supplements it.
3. India:
   • Role: In India, party leaders select the candidates for a seat. It provides a disincentive to the members to go against the party lines.
   • Implications: Moreover, anti-defection law and whip system in India ends the significance of opinion of candidates on major issues.

 

Way Forward:

• Longer consensus route: Promote comprehensive debate among party members.
• Limited whip: Use only for government survival, e.g., money or no-confidence bills.
• Adopt “Free Vote” (UK): Allow MPs to vote independently on select issues.

 

A whip system is essential for stability and smooth governance but needs reforms for democratic integrity.

 

Leader of Opposition (LOP)

The LOP is the leader of the largest opposition party in the parliament.

Legal Provisions:

• Mavalankar’s Rule: G.V. Mavalankar was the first Speaker of the Lok Sabha. He formulated the rule that the single largest opposition party must have at least 10% of the total strength of the House to designate its leader as the LOP.

In Practice:

• Recognised Party: Defined by the Leaders and Chief Whips of Recognised Parties and Groups in Parliament (Facilities) Act, 1998.
  • Must have no less than 55 members in the Lok Sabha.
  • A party with fewer than 55 seats in LS is considered a “group.”
• The 10% rule is not statutory but is followed as a parliamentary convention.

 

Significance of the LOP:

• Shadow PM: Acts as the ‘Shadow Prime Minister’ or ‘Alternative Prime Minister.’
• Provide alternative government: Ready to step in if the government falls.
• Criticism of policy: Contributes to cohesive and effective opposition in policy and legislative discussions.
• Provide contrary view: Represents alternative viewpoints to government policies.
• Transparency: Ensures bipartisanship and neutrality in appointments to institutions like CVC, CBI, CIC, and Lokpal.
• Safeguard: Protects minority rights and demands debates to ensure parliamentary scrutiny.

 

Current Controversies:

1. Fall short: Congress held 44 seats in the 16th LS and 52 in the 17th LS, below the 10% threshold.
2. Speaker’s rejection: Congress’s request for the LOP was denied based on conventions, criticized due to the lack of statutory backing for the 10% rule.
3. Law should be referred: The LOP’s statutory basis calls for legal clarity on recognition.
4. Legally bound: The Speaker must recognize the largest opposition party leader.
5. Petition in SC: A Supreme Court case sought to challenge the non-statutory nature of Mavalankar’s rule. SC rejected the appeal, maintaining that procedural norms fall outside judicial review.

 

Comparison with Other Countries:

• • Britain:
    • The opposition is officially recognized as Her Majesty’s Loyal Opposition.
    • Includes a Shadow Cabinet to balance the government and prepare for future ministerial roles.

• United States

• • The President is held accountable by minority parties in Congress. 
  • A flourishing democracy should accommodate the fundamental right to dissent. 
  • Inclusion of LoP provides objectivity and a contrarian perspective to decisions and appointments made by the government.

 

Need of LoP:

1. Checks and balance: While appointment in CVC, CBI etc., it ensures a degree of credibility & faith in these organizations and to avoid undermining the democratic checks and balances.
   • For Example: Smt. Sushma Swaraj in 2011 pointed discrepancies in the appointment of Mr. P J Thomas as CVC. Her opinion was upheld by the SC, which later struck down Thomas’ appointment.
2. Provide unified front: The absence of an opposition leader will weaken parliamentary democracy as the opposition will not be able to put up a unified front against the ruling party.
3. Accountability: Opposition’s main role is to question the government of the day and hold them accountable to the public. The LoP is equally responsible in upholding the best interests of the people of the country.

 

Way Forward

• Critical in functioning: No matter whosoever gets the majority, the LOP is critical to effective functioning of the opposition in the Parliament.
• Enforce law: Now there is a law recognising the LOP, it can’t be overlooked or undermined, no matter what the flexibility or ambiguity that exist in the legal framework.
• Scrap 10% rule: There arises a problem when no party in opposition secures 55 or more seats. In such situations, the numerically largest party in the opposition should have the right to have a leader recognised as leader of the opposition by the speaker.

A flourishing democracy should accommodate the fundamental right to dissent. Recognition of LOP provides objectivity and a contrarian perspective to decisions and appointments made by the government.

 

PARLIAMENTARY PRIVILEGES

Parliamentary privilege refers to rights, immunities and exemptions enjoyed by MPs individually and collectively so as to discharge their functions responsibly.

Source and Types of Privileges

1. Sources:
   • Constitutional Provisions: Article 105 for center and Article 194 for states.
   • Various laws made by Parliament: Parliament can make laws to codify privileges.
   • Rules of both the Houses
   • Parliamentary conventions: If anything is not codified, it has to be like before 1947.
   • Judicial interpretations
2. Types of Privileges:
   • Individual Privileges: e.g., MPs enjoy Freedom of Speech within the house, MPs cannot be arrested 40 days before and after beginning of parliamentary session in civil cases.
   • Collective Privileges: Right to publish records, reports, debates and prohibit others from doing the same, Right to have secret sittings, Right to be informed of the arrest and release of members. Right to punish for its contempt or breach of privilege. No legal process [civil / criminal] can be served without informing the presiding officer.

 

Importance/significance of Parliamentary Privileges

(If the Question comes directly on significance, please use “Types of Privileges” to supplement below content)

• Secure Independence of Legislators: secure the independence and effectiveness of the actions taken by them.
• Maintain Dignity: help maintain the dignity, authority, and honour of the members of parliament.
• Prevent obstruction: help secure the members of the houses from any obstruction in their discharge of actions.

 

Current Challenges in Parliamentary Privileges

1. Against Separation of Powers: Breach of privilege allows legislators to become sole judges to decide what their privileges are, what constitutes their breach, and what punishment is to be awarded in case of breach. Hence, the Legislature is doing work of Judiciary.
2. Violating Basic Fair Trial: Legislators being judges in their own cause raise concerns of conflict of interest and violate Right for fair trial.
3. Absence of Codification: Given the vague wording of the Constitutional provisions, the exact number of privileges is uncertain, and according to some jurists, even unlimited.
4. Wrong use of Privileges: Legislators have sometimes used these privileges to silence criticism, hence violating Right of Freedom of Expression. Example: Karnataka Assembly Speaker ordered the imprisonment of two journalists in 2017.
5. Role of Supreme Court: SC holding that certain fundamental rights override legislative privilege, while others are subservient to it. Hence, SC has not been much clear on this issue.
   • Keshav Singh’s Case, 1965: Article 21 is above Parliamentary privileges.
   • Searchlight Case, 1958: Judicial review not applicable → No judicial scrutiny.
6. Partisan Role of the Speaker: There are allegations against the speaker of being biased towards the ruling party, while deciding on breach of Parliamentary Privileges.
7. Hurts the Principle of Popular Sovereignty: Unlike England, in India, the Constitution is supreme, not Parliament. Hence, absolute power in the form of Parliamentary privileges makes Parliament supreme instead of people.

 

Important Cases and Examples

1. Relevant Judgements
   • Searchlight Case, 1958: Supreme Court held that the power of judicial review could not be invoked to challenge an order made under Article 194.
   • Keshav Singh’s Case, 1965: Supreme Court clarified that Article 21 (Right to Life and Personal Liberty) would be applicable even when Legislatures exercised their powers in respect of their privilege. However, the position regarding Freedom of Speech being subservient to legislative privilege was confirmed.
   • Raja Ram Pal Case, 2007: Supreme Court held that Fundamental Rights under Articles 20 and 21 could prevail over privileges under Articles 105 and 194. However, no mention was made of rights under Article 19 (1) (a) relating to Freedom of Speech.
2. Examples
   • Tamil Nadu Assembly, 2003: Tamil Nadu assembly speaker directed the arrest of five journalists for publishing articles that were critical of the AIADMK government.
   • Karnataka Assembly, 2017: Karnataka assembly Speaker ordered imprisonment of two journalists for a year based on recommendations of its privilege committees.

 

Need for Codification of Parliamentary Privileges

1. Arguments against

• Parliamentary Sovereignty: It would challenge the Sovereignty of Indian Parliament. 

• Judicial Scrutiny: It would lead to judicial scrutiny of privileges especially when it comes in conflict with fundamental rights. It may lead to delays.

• New Privileges: It would make the evolution of new privileges very difficult. 

• Parliamentary Functions: The members should have the freedom to discharge their functions, including the right to speak and vote within Parliament, without the fear and favour which requires these parliamentary privileges.

2. Arguments in Favour

• Temporary Measure: The Constitution implicitly provided for a law to codify privileges and adopted the practice in the House of Commons as a temporary measure.
• Curb Misuse: Codification would fix the exact limit of the breach of privileges after which punishment can be inflicted.
• Defined Provisions: It would define precisely what constitutes and amounts to a breach of privileges, hence will remove vagueness.
• Ease for Judiciary: Relief from court can be easily available if privileges are codified.
• Constitutional Sovereignty: In a vibrant democracy like India where the constitution and not Parliament is sovereign, codified will enable clear interpretation.
• International Examples: like Australia, which has codified Parliamentary privileges.
• Historical Mistake: Drafters of the Indian Constitution put Indian Parliament on a par with the British House of Commons. De Lolme’s statement about the supremacy of British Parliament, that “Parliament can do everything but make a man a woman and a woman a man,” is not applicable to India. Unlike England, in India the Constitution is supreme, not Parliament.

 

Way Forward

• Codify Privileges: National Commission to Review the Working of the Constitution (NCRWC) in its report in 2002, suggested that privileges be “defined and delimited.” 2nd ARC also endorses the views of NCRWC.
• Judicial Use of Privileges: Privileges should be used only when there is obstruction in the working of the Parliament or state legislature.
• Independent Tribunal: Speaker usually has political affiliations. Therefore, trial should be conducted by independent, competent, and impartial Tribunal.
• Pro active role of Judiciary: The judiciary should establish the balance between the parliamentary privileges and the fundamental rights.
• Strengthening the role of Privileges Committee: to investigate the cases of breach of parliamentary privileges.

 

QUESTION HOUR AND ZERO HOUR

Question Hour: The first hour of every parliamentary sitting is slotted for question hour and during this, members can ask questions to the ministers and can hold them accountable for their actions.

Zero Hour: Zero Hour is an Indian parliamentary innovation. It is not mentioned in the parliamentary rules book. Under this, MPs can raise matters by giving a very short notice of around three hours.

 

Current Incidence Recently, the Central government has decided to suspend the Question Hour and curtail Zero Hour for Monsoon Session. This has been done in view of the Covid-19 pandemic. Previous Incidences In the past, the Question Hour had been suspended during wars and the Emergency. India-China war of 1962: During the India-China war of 1962, Parliament’s winter session had skipped the Question Hour. 1971 War: During the 1971 war, too, the daily schedule was changed. From December 6 to 23 (due to Pakistani aggression), the Question Hour and Calling Attention matters were suspended. The Emergency (June 25, 1975—March 21, 1977): During the Emergency, imposed by the Indira Gandhi regime, Parliament continued to function but without Question Hour in at least two sessions.

Importance of Question Hour

• Ensure accountability: As members ask questions to ministers and seek their accountability on their functions and decisions taken.
• Information to public: It provides information to the people about the lapses in its functioning and helps in shaping the opinion of the public.
• Keep minister on toe: It is a regular tool in keeping the ministers on their toes and prevent them from taking inconvenient commitments.
• Regularity: The daily ‘Question Hour’ has an unmatched criticality on account of its regularity and its availability on a basis of equality to every Member of the House, Rajya Sabha, or Lok Sabha.
• Broad Scope: It has a special significance in the proceedings of Parliament since it covers every aspect of government activity, domestic and foreign.
• Wide scope: It covers every domain of government function whether domestic or foreign.
• Result in public debates: Answers provided in Question Hour lead to wider debate, leading to the development of critical thinking of the people of the country.
• Stance of Executive: The advantage of Question Hour to the government is that its position in the matter is authoritatively explained.

 

Effect of Suspension

• Opposition’s peril: Question Hour is the only device to hold the government accountable. Rest are controlled by the government.
• Against democratic principles: Suspension of Question Hour is not a good sign in democratic principles, especially in parliamentary democracy.
• Bad Precedence: Parliament is the guiding light of legislative functioning, and its functioning will set the bad examples for State Legislatures to follow in the future.
• Lacks Consensus: The move to suspend Question Hour due to pandemic and to find alternate options was not discussed with leaders of political parties and groups.
• Grasping of more power: Importance of Zero Hour and Question Hour has become very crucial at this juncture, as in the name of controlling the Covid pandemic, the executive is appropriating more powers. So many guidelines, rules, and regulations have been issued without the sanction of Parliament.
• Cut short debate and deliberation: There has been a greater tendency on the part of the government to short-circuit debate and deliberation.
• Pandemic an excuse to murder democracy: This would mean that the MPs would not be able to hold the government accountable for its action. This will go against the spirit of parliamentary democracy.
• Chance of financial mismanagement: Over the last 70 years, MPs have successfully used the parliamentary device of ‘Question Hour’ to shine a light on government functioning. Their questions have exposed financial irregularities and brought data and information regarding government functioning to the public domain.

 

Issues with the Functioning of Question Hour

• Non-answerability to questions: Only around 30–40% of questions are actually answered.
• Corruption: There is a lot of corruption happening in the functioning of Question Hour — e.g., Cash for query scam of 2005.
• Non-seriousness: Both MP and minister do not show seriousness towards the Question Hour session.
• Disruption: Any disruption in Parliament leads to Question Hour becoming non-essentiality. E.g., recent government decision to suspend the Question Hour for the Monsoon Session.

 

International Practices During Pandemic

Parliaments in Britain and Other Countries Introduce Innovative Measures

• No suspension of session: Parliaments around the world have introduced some changes to adapt to the COVID outbreak. However, the other major Parliaments UK or New Zealand, have not cancelled their sessions.
• Rescheduling and reduced duration: Instead of changing the schedule of Parliament sessions and reducing the duration, only modalities have been changed.
• For instance, in Britain, parliaments were allowed to ask questions to the Prime Minister in the chamber and remotely.

 

Way Forward

• Establish mechanism: Ensure fuller utilization of Question Hour by establishing a mechanism to ensure that Question Hour is conducted even when there is disruption in the House.
• Ensure answerability: Need to ensure that ministers answer each and every question asked in Question Hour by establishing a dedicated body in the House.
• Reduce corruption: Malpractices in Question Hour need to be curbed by taking stringent action in the form of disqualification of members.

 

Example of Great Use of Question Hour

Uncovering Independent India’s First Financial Scandal

• In 1957, Ram Subhag Singh, a Lok Sabha MP from Bihar, utilized Question Hour to question the Finance Minister about an investment made by the state-controlled LIC of India in the company of a Kolkata-based businessman called Haridas Mundhra.
• The outcome was the decision that LIC would only make investments in blue-chip companies. The enquiry report by Justice Chagla’s led to Finance Minister T.T. Krishnamachari’s resignation from the Council of Ministers of PM Nehru.

The test of a functioning democracy is its ability to face crises — social, economic, political — and seek correctives premised on institutions of democracy. A resort to what has been called ‘the politics of avoidance’ does not help the process.

 

FUNCTIONING OF THE PARLIAMENT AND STATE LEGISLATURE

India preferred Parliamentary form of government over the Presidential form because of preference given to accountability over stability. The SC ruled Parliamentary form of government forms the part of Basic Structure of the constitution.

Data Criminal legislators: The MPs with criminal charges have increased from 30% in 2009 to 34% in 2014 and 43% in 2019. Committee references: The percentage of bills referred to committees declined from 60% and 71% in the 14th Lok Sabha (2004-09) and the 15th Lok Sabha, respectively, to 27% in the 16th Lok Sabha and just 11% in the current one. Disruptions: As per PRS Legislative Research report, frequent disruptions of Parliamentary proceedings have resulted in the Lok Sabha working for 61% and Rajya Sabha for 66% of its scheduled time.

 

Functions of Parliament as per Subhash Kashyap in “Our Parliament”

• Political and financial control
• Supervision of administration (Article 75)
• Elicitation and dissemination of information on the government of the day
• Grievance Ventilation
• National integration
• Legislative and constituent functions
• Furnishing leadership to the nation.

 

Reasons for Declining Effectiveness of the Parliament and State Legislature

1. Criminalization of Politics: When lawbreakers become lawmakers, it impacts the quality of discussion and debate and dissent. According to ADR, there is a 26% increase in MPs facing criminal charges with respect to the 2014 Lok Sabha.
2. Executive-led Legislature:
   • Private Members Bill: The private members’ bills are not taken up for discussion and debate. The last private members’ bill was passed in 1970.
   • Resort to Ordinance Route: Dr. Ambedkar expected an ordinance to be a dead letter to be used by the executive to make law during exigencies, but it has become a deadly weapon.
3. Anti-Defection Law: MPs and MLAs do not have the freedom to freely express their opinion in the House because of the fear of disqualification. It is also weakening the democratic accountability of MPs towards their constituencies and promotes undue loyalty to political parties.
4. Partisan and Ineffective Role of the Presiding Officer of the House:
   • Passage of Ordinary Bills as Money Bills: When the speaker certifies the bill as a money bill, it dilutes the role of the Rajya Sabha. E.g., Aadhar bill passed as a money bill.
   • Frequent Disruptions: The failure to effectively perform the duty of ensuring decorum in the House impacts the functioning of the House.
     • Example: Rajya Sabha utilized only 47.9% of its allotted time during the 18 sittings. Of the scheduled sitting time of 95 hours 6 minutes, it transacted only for 45 hours of business. The Lok Sabha saw 83 hours and 20 minutes of business being conducted with 18 hours and 48 minutes of disruption.
   • Lag in Decision Making: The delay in decision making erodes the trust of opposition MPs. E.g., delays while deciding the anti-defection cases in the recent Karnataka assembly case.
5. Lowering Standards of Parliamentary Scrutiny:
   • Absenteeism of Members and Reduced Number of Sittings: The complexity of the legislative work is increasing, but the number of sittings is declining along with increasing absenteeism.
   • Diluting the Role of Parliamentary Committee: Bills are passed without referring to the Parliamentary Committee.

 

• Voice Vote: The public will not be able to know the exact number of votes in favor of the bill/amendment.
• Guillotining of clauses: As per PRS legislative research, 100% DFG were Guillotined. This has set an unbecoming precedent. Even Chief Justice N.V. Ramana had complained about a lack of debate in Parliament.
• Decreasing productivity: Over the decades, the productivity of the Parliament has consistently decreased. The 3rd least productive Lok Sabha session of the last two decades was recorded according to PRS Legislative Research data.
• Example: The House performed “much below its potential,” referring to a situation involving the suspension of 12 Rajya Sabha MPs at the beginning of the session. This event set the tone for a less productive debate period.

1. Decline of Representative Democracy: The scope for dissent and a range of views in Parliament has narrowed.
   • Women representation: India has low women representation in legislative houses at 14.3% (78) of the total members.
   • Post-electoral system impact: The seat share in the House does not proportionally reflect vote shares.
2. Lack of research support for MPs: Limited research resources like LARRDIS result in MPs lacking the expert research needed for thorough debate preparation.
3. Parliamentary disruptions:

• Ineffectiveness of Speaker/Chairman: Scarce resort to disciplinary powers leads to unchecked misconduct.
• Contentious debates: Issues like Pegasus Project and CAA 2019 have led to disruptive sessions.
• Government hesitation: Reluctance to debate leads to violations of conduct rules by MPs.
• Party politics: Members find backing in party support for disruptive behavior.
• Coordinated disruptions: Often, disruptions are organized efforts by parties, not individual actions.
• Media role: Disruptions often gain media attention, which can give parties causing disruptions recognition.
• Protests over debate: Winning elections is prioritized over structured debate.

Impacts of Improper Functioning of Parliament and State Legislatures:

1. Structural

• Infringement of Constitutional Right: The right to ask questions under Article 75 of the Constitution becomes compromised when Parliament does not function properly, impacting accountability.
• Hindrance to Representative Democracy: Parliamentary discussion is a manifestation of a representative kind of democracy in operation, in the sense that representation of the people directly questions the government on matters of governance.

2. Systemic

• Limit the oversight over executive: The curtailment of question hour and zero hour undermines the principle of parliamentary oversight over executive.
• Government evade responsibility: The maximum number of disruptions have been found to take place in the Question Hour and the Zero Hour.
• Lack of dedicated time for unlisted discussion: Disruptions also get triggered due to lack of adequate time for raising questions and objections in respect of matters that are not listed for discussion in a particular, or during a particular session.

3. Legislative

• Anti-defection law: The effect of anti-defection law is not only manifest in disruptions or the nature of protest and dissent, but is also negative for intra-party democracy.
• Dis-functioning of parliament: Disruption leads to waste of taxpayers’ money on a perpetually disrupted and consequently, non-functioning Parliament.
• Legislative paralysis: Frequent disruptions affects the normal functioning of the parliament and has thus stultified governance.

 

How to reinstate the effectiveness of the working of Parliament and state legislature

1. Procedural

• Re-instate the sanctity of question hour: Any disturbance during Question Hour should call for the suspension of the concerned MP from the house and his/her dis-entitlement to the sitting allowance for the day.
• Yearly calendar for the sittings of the Parliament and the state legislature: Democracies like UK, US and Germany have fixed parliamentary calendars. NCRWC recommends that it shall be 120 and 100 days respectively for Lok sabha and Rajya Sabha.
• Prime Minister’s Questions like in UK are to be introduced in India which makes accountability from highest level possible and addresses the bigger policy questions.
• Giving opposition the authority to decide the agenda of the House: Some days in every session should be dedicated to discuss the agenda decided by the Opposition.
• Use of ‘Shadow Cabinet’ system: The opposition party should form ‘Shadow Cabinet’ to balance the ruling cabinet like in UK.
• Parliamentary committee reforms: Strengthen Parliamentary committees for effective functioning like longer tenure (instead of the present one year), promoting specialization, etc.

2. Accountability

• Parliamentary Budget office: To be established as an independent and impartial body linked directly, to Parliament akin to USA congressional budget office that will help the Parliament to hold the executive’s financial accountability.
• Policy and Legislative Impact Assessment: For comprehensive account of social, economic, environmental and administrative impact prior to enactment of law.
• Performance linked allowance for parliamentary sittings: In case of disruptions, MPs should be penalized and allowance should be deducted for the unproductive sitting.
• Discontinuing live telecast when disruptions become excessive: As members resort to disruptions as they find it to be the most convenient of all methods to stay relevant in the public eye.
• Parliamentary Disruptions Index: Through the PDI, the track record of an MP who engages in disruptions may be calculated, to shed light on the member’s propensity to engage in such conduct, and motivations for such conduct.

3. Legislative

• Statutory Reforms: The Hybrid system of voting can be brought by amending Representation of People’s Act of 1951.
• Revamp the Anti-Defection Act: It should be used only in the most exceptional circumstances which impact the stability of the government and allowing MPs to express freely on the floor of House.
• Codification of Privileges: The codification will prevent the abuse of privileges. This can be done by amending Article 105 or defining clearly in RPA.
• Allowing Parliament to convene itself: Presently, the power to summon parliament rests with the executive. Parliament should be able to convene itself if a certain number of MPs agree that Parliamentary sitting is necessary without any delay.

4. Economic

• Funding for research: Dedicated funding for LARRDIS (Library and reference, research, documentation, and information service).
• More teeth to MPs: Parliament can give more chances to question the government.
• Ethics committees: Need to be strengthened so as to scrutinize parliamentarial conduct.
• Productive Parliamentary Index: To showcase the output and outcome of every session.
• Sense of responsibility by both sides: The smooth conduct of the House was the responsibility of all stakeholders and must run with the collective will and consensus of all.

5. Social

• Women Representation: The political parties should make voluntary efforts to increase women representation.

6. Substantive

• Permission to intervene, and the expression of a divergent view: Lok Sabha and Rajya Sabha Rules incorporate an express provision which permits MPs to express views which are divergent from the views of her party similar to the German model.
• Disrupting members to be named by the Speaker: The possibility of being publicly shamed by the Speaker for un-parliamentary behavior serves as an adequate deterrent for MPs to maintain decorum in the House.
• Ethics Committee Reforms: Ethics Committees may be vested with power to specifically publish information on disruptions, including names of MPs who disrupt the most and as well as a record of complaints and inquiries relating to disruptions released to the public.

 

Case Study: UK/Canada Model of Parliament Working

1. Planned days of parliament: In the UK, Parliament meets over 100 days a year and opposition parties get 20 days on which they decide the agenda for discussion.
   • The main opposition party gets 17 days and the remaining three days are given to the second-largest opposition party.
2. Effective questioning of PM: In the UK, the PM is bound by a constitutional convention to respond to questions directly posed to him by MPs.

 

Conclusion

Democracy is judged by the debate it encourages and sustains. More strengthening of the Parliament is the solution to prevent disruption of its proceedings. There should be a deepening of its role as the forum for deliberation on critical national issues.

 

ANTI-DEFECTION LAW

Political Defection means a party member moving from one party to another for some gains or benefit. It means changing allegiance towards the party from which ticket the member is elected to parliament or state legislature.

Anti-defection law

• 52nd Constitutional Amendment Act: added the provision of anti-defection law through Schedule X in the Indian constitution to curb the evil of defection.
• It lays down the process of disqualification: By which legislators may be disqualified on grounds of defection by the Presiding Officer based on a petition by any other member of the House.
• Criteria for elected members: A legislator is deemed to have defected if he either voluntarily gives up the membership of his party or disobeys the directives of the party leadership on a vote.
• Criteria for nominated members: In their case, the law gives them six months to join a political party after being nominated. If they join a party after such time, they stand to lose their seat in the House.
• Criteria for independent candidates: When a legislator who has won his or her seat as an independent candidate joins a political party after the election.
• Implications: This implies that a legislator defying (abstaining or voting against) the party whip on any issue can lose his membership of the House.
• Application: The law applies to both Parliament and state assemblies.
• Exceptions: The law allows a party to merge with or into another party provided that at least two-thirds of its legislators are in favour of the merger.
• Judicial intervention: In 1992, a five-judge constitutional bench of the Supreme Court held that the anti-defection law proceedings before the Speaker are akin to a tribunal and, thus, can be placed under judicial review.

 

Recent Examples

• West Bengal: There have been recent instances of defections in the poll-bound State of West Bengal from the State’s ruling party TMC to the BJP which has made steady political inroads in West Bengal.
• Madhya Pradesh: 22 MLAs of the Jyotiraditya Scindia faction of the Congress party resigned from the Vidhan Sabha, causing the fall of the Kamal Nath government.
• Karnataka: In 2019, the Congress government collapsed as at least 17 MLAs of the ruling party resigned and thus HD Kumaraswamy-led government found itself in jeopardy.
• Goa: In 2019, 10 of 15 Congress MLAs in Goa joined the ruling BJP. 12 of 16 Congress MLAs in Telangana had ‘merged’ with TRS.
• Manipur: In 2017, the BJP formed the government in Manipur after seven legislators who won on a Congress ticket switched sides.
• Data fact: Nearly 45% of MLAs who have switched parties and contested elections again between 2016 and 2020 have joined the BJP. On the flipside, 42% of the MLAs who defected left the Congress, the data showed. – Association for Democratic Reforms.

 

Implication of defection

• Affects the normal functioning of government: It creates instability by toppling already elected government and breaking implementation of policies.
• Situation of lawlessness in the States: With different political parties fighting for power, this creates a scenario of lawlessness and breaking of command hierarchy.
• Promote horse-trading: Defection also promotes horse-trading of legislators which clearly goes against the mandate of a democratic setup.
• Subversion of electoral mandates: legislators who get elected on the ticket of one party but then find it convenient to shift to another, due to the lure of ministerial berths or financial gains.
• Affect dignity: Political defection destroys the institutional dignity of political parties.
• Corruption: It also promotes issues like ‘Money bags’, corruption, etc.

 

Argument in favour of Anti Defection Law

1. Political
   • Ensure stability: Provides stability to the government by preventing shifts of party allegiance.
   • Ensure loyalty: Ensures that candidates remain loyal to the party as well as the citizens voting for him.
   • Curb malpractices: Avoid horse trading of members, along with the use of money and muscle power.
   • Merger: Facilitates merger of political parties without attracting the provisions of Anti-defection.
   • Deterrence: Punitive measures against a member who defects from one party to another will deter him to perform such malpractice.
2. Social
   • Trust of voter: It provides to voters that whom they vote will represent them with full dignity and support.
   • Safeguard minorities: Opportunity politics has a greater effect on minorities as shifting from one party to another will change ideology and priorities.
3. Governance
   • Ensure flow of administration: Changing parties often involves resignation from the party in power, this hampers flow of administration.
   • Ensure policy completion: It will ensure that all the members will abide by the policies and program of the party.
4. Ethical
   • Promote discipline: Party Discipline is promoted, which in turn affects the attitude of party members.

 

Argument against Anti defection Law

• Defection for noble cause: It is often claimed that the decision to defect is driven by the urgency to defend one’s political autonomy and stand by the principles of democracy and justice. Thus, in defection, such defectors may choose to find a “noble” cause.
• Against dissent: The law prevents dissent against party policies. Thus, it interferes with the member’s freedom of speech and expression.
• Puppet of political party: It destroys the spirit of liberty and leads to the practice of puppetry within the party system in a parliamentary democracy.
• Affect matter of choice: Defection is a matter of choice; members should have the right to decide whom they support.
• Loss of independence: Anti-defection has led to loss of independence of an average legislator.
• Unbridled power to presiding officer: The defection cases are decided by the presiding officer of the House concerned; the impartiality of the presiding officer is not always guaranteed.
• Prevent discussions and debates: It prevents members from speaking up their mind, thus leading to less discussions and lesser healthy debates and solutions in parliament.
• No incentives: Due to lack of accountability and limit on speech and expression MPs/MLAs find no incentives to research and understand policies and to find solutions to various issues.
• Failed to prevent defection: Despite a law in place, defection of legislators from one party to another is taking place as usual.
• Procedural delay: There is no clarity in the law about the timeframe for the action of the House Chairperson or Speaker in the anti-defection cases. The speakers, chairpersons, and the courts are also dragging the anti-defection cases for years. 
• Undemocratic: Those against say that voters elect individuals in the election and not parties, and hence the Anti-Defection law is infructuous. 
• Partiality from Speaker: In many instances, the Speaker (usually from the ruling party) has delayed deciding on the disqualification. 
• Inconsistent ideas: The amendment does not recognise a ‘split’ in a legislature party and instead recognises a ‘merger’.

 

Way forward

There are recommendations by various committees which need to be considered.

1. Law Commission 170th Report:
   • Delete the exemption in case of splits and mergers.
   • Consider the pre-poll electoral fronts as one party under the 10th Schedule.
   • Parties should issue whips only on critical situations or votes.
2. Halim Committee on anti-defection law:
   • The words ‘voluntarily giving up membership of a political party’ be comprehensively defined.
   • Restrictions like prohibition on joining another party or holding offices in the government be imposed on expelled members.
   • The term political party should be defined clearly.
3. Election Commission:
   • Make the President/Governor the decision-maker with respect to disqualification subject to binding advice from the Election Commission on the lines of disqualifications based on the Representation of People’s Act’s provisions regarding the Office of Profit.
4. Dinesh Goswami Committee: Recommendations include that disqualification should be only for cases such as:
   • Member giving up his membership of his political party voluntarily.
   • Member voting or abstaining from voting opposed to party directions.
5. Supreme Court:
   • It has suggested that Parliament should set up an independent tribunal headed by a retired judge of the higher judiciary to decide defection cases swiftly and impartially.
   • Last year, the Supreme Court observed that anti-defection cases should be decided by Speakers in three months’ time.
6. Others: Former Vice President Hamid Ansari has suggested that it applies only to save governments in no-confidence motions.

 

The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundation of our democracy and the principles which sustain it.