In most constitutional democracies, the role of the three branches—the executive, legislature and judiciary—and the balance of power among them is carefully framed. The Constitution of the United States, for instance, does not give supremacy to any branch but specifies a clear demarcation of roles. On the other hand, the Indian Constitution establishes the supremacy of the legislature over the executive, and maintains an independent role for the judiciary. Article 75(3) states “The Council of Ministers shall be collectively responsible to the House of the People.” However, the spirit of this principle is often violated. We illustrate the various ways in which the executive escapes scrutiny and discuss the means by which the legislature may re-establish its authority.
How the Executive gets away
Anti-defection Law: This law is perhaps the biggest impediment to the ability of legislators to independently evaluate various proposals. The government is formed by the party (or parties) that have a majority of the membership of the lower house. All MPs have to vote according to the whip issued by their party, and they lose their seats if they violate the party diktat. Few MPs disobey the party whip even if they believe that the required action is against the interests of their constituents or against the national interest. Thus, all government motions and bills always have majority support and can be passed.
Session dates: The President issues the summons detailing session dates to MPs on the advice of the council of ministers. Thus, the government decides the dates when Parliament meets (within the Constitutional requirement of a maximum gap of six months between sessions).
Business of the House: Government business gets precedence over other work. There have been several instances when Parliament has been adjourned ahead of schedule as the government declares that it has no further business to transact. On such occasions all other work such as questions, issues raised in zero hour and private member bills and resolutions are jettisoned.
Question Hour: The question hour is meant for MPs to ask questions and hold the government to account. However, in practice, there is time for only five or six of the 20 listed questions to be answered. Also, the Indian system differs from the system in some other democracies. The UK has a Prime Minister’s Question Hour every week when the PM takes questions without any notice. In Australia, all ministers are expected to be present; MPs may ask questions of any minister.
Legislation: In theory, any MP can introduce a Bill, which may be considered by Parliament. However, the time allocated for private member bills is restricted to two-and-a-half hours every alternate Friday. Typically, only about five Bills are actually discussed. And only 14 such Bills have been passed, the last one in 1970. Thus, only the government’s legislative agenda is actually implemented.
Commencement of Acts: Many Acts authorise the government to notify the date from which various sections come into effect. In some cases, the government does not bring the Act into force, or does not notify some sections. For example, the Delhi Rent Act was passed by Parliament in 1995 but has not been notified.
Subordinate legislation: Many Acts require the government or other statutory authorities to frame rules and regulations to implement the Act. Over 1500 such rules are framed every year. MPs may raise objections to these rules and demand a discussion. It is instructive to note that the 14th Lok Sabha did not witness even a single discussion on these rules.
Ordinances: When Parliament is not in session, the President can promulgate an Ordinance on the advice of the Prime Minister. They are valid for a period of six months, or six weeks after the commencement of the next session of Parliament, whichever is earlier. It can be seen that the use of ordinances goes up during times of unstable governments. In the 1990s, an average of 20 ordinances were issued per year; the figure dropped to 7 per year in the 2000s.
Committees: Much of parliamentary work is conducted through various committees. Standing Committees organised on departmental lines examine government bills as well as budgetary demands. The recommendations of the committees are not binding; the government does not even have to give reasons for rejecting the recommendations.
What can MPs do?
The first step is for legislators to fulfil their duties within the current system. For example, they should realise that disrupting the question hour just reduces their opportunity to hold the government to account. Also, subordinate legislation must be scrutinised.
In the medium term, there is the need to review some structural issues. Should there be a minimum number of days that Parliament must meet? Is there need for an annual calendar to help MPs plan their schedule (such as in the UK)? Should we follow the UK example of requiring the government to publish its annual legislative proposals for public feedback? Should the Prime Minister be required to face Parliament during Question Hour? Should the government be required to respond to all recommendations of standing committees? And finally, is it time to review the anti-defection law and restrict its purview to trust votes and money bills (Manish Tewari, a Congress Party MP, is reportedly introducing such a bill)?
The most important function of Parliament is to independently evaluate all legislative proposals, and to hold the government to account. It is time our legislators asserted their supremacy over the government and fulfilled these responsibilities effectively.
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