Last week, a new Parliament building was inaugurated with both fanfare and controversy. In particular, the exclusion of the President of India – the ceremonial head of the executive – from the inauguration, and the symbolism around the Sengol – the scepter originally used to denote the transfer of power between Chola rulers – generated significant debate. . However, beneath this debate lies an overlooked fact: the growing subordination of “Parliament” to India’s “parliamentary democracy”.
Parts of this story are familiar: We know that bills are passed with little or no discussion. We know that Parliament sits for fewer and fewer days a year, and parliamentary sessions are often adjourned. We know that Presidential Ordinances have become a parallel if not an effective form of law making.
by constitutional design
It is all attributed to unscrupulous or callous politicians. What gets missed, however, is an understanding that the growing irrelevance of Parliament is not due to individual actions but a matter of constitutional design. In other words, the Indian Constitution, by its very structure, facilitates and enables the marginalization of Parliament and the concentration of power within a key executive.
how does this work? Consider the various safeguards that parliamentary democracies typically have against executive dominance or abuse. First, in order to implement its agenda, the executive must command a majority in Parliament. This opens up space for intra-party dissent, and an increasingly important role for ruling party MPs – who are not members of the cabinet – to exercise control over the executive. Sometimes, even backbenchers of the ruling party may join forces with the opposition to defeat unpopular bills (as was the case with the various Brexit deals in the UK House of Commons between 2017 and 2019). Second, the opposition has been given few rights in the parliament itself, and some limited control over parliamentary proceedings to hold the executive to public account. Third, the interests of Parliament against the executive are to be represented by the Speaker, a neutral and independent authority. And fourth, some parliamentary democracies embrace bicameralism: that is, a second “upper house” that serves as a revision chamber, where interests other than the brute majority are represented (in our case, this is the state legislature). Assembly, which acts as a council) of states).
When these features work as they should, it becomes very difficult for the executive to dominate the parliament and, in turn, opens up space for the parliament to act as a deliberative and representative body , as it should be.
a weakening, erasing
However, in India, each of these features has been diluted or eroded over the years.
First, the Tenth Schedule to the Constitution, popularly known as the “anti-defection law”, has sealed the possibility of intra-party dissent within Parliament. Introduced through a constitutional amendment in 1985, the Tenth Schedule makes disobedience of the party whip punishable with outright disqualification from the House. Ironically, as recent events have amply demonstrated, the Tenth Schedule has failed to serve the purpose for which it was enacted, that is, to prevent horse-trading and non-principled floor-crossing. For. What this has done, however, is strengthen the hand of the party leadership – which is effectively the cabinet/executive in the ruling party’s case – against its own MPs. Intra-party dissent is far more difficult when it costs disqualification from parliament.
Second, since its inception, the Indian Constitution did not make any special place for political opposition in the House. For example, there is no counterpart to Prime Minister’s Questions, where the Prime Minister faces direct questioning of his record by the Leader of the Opposition as well as other politicians. In other words, the manner of proceedings in Parliament is under the complete control of the executive, with no real constitutional check on how that control is exercised.
Third, it is compounded by the fact that the Speaker, in our system, is not independent. The Speaker is not required to give up his political party membership, and is not constitutionally bound to act impartially. This has led to a tendency to act openly in a partisan manner to advance the interests of the executive above the interests of the House, both at the central and state levels. This not only affects the quality of deliberations in the lower house (since the speaker has control over the conduct of the house) but also has an impact on the upper house: as has been seen recently, when the ruling party Wanting to avoid effective scrutiny in the Rajya Sabha on Bills, the Speaker simply classifies the Bill as a “Money Bill”, thus depriving the Rajya Sabha of the right to make amendments. This was seen most clearly in the case of the Aadhaar Act, where Rajya Sabha scrutiny was avoided in this precise manner, and several important, rights-protecting amendments could not be passed.
role of upper house
Fourth, the role of the Upper House is undermined not only by misclassification of bills by the Speaker but also by constitutionally sanctioned ordinance making power. An ordinance is nothing more than an executive law; And while, in theory, it is intended to be used only for an emergency while Parliament is not in session, in practice, it is used as a parallel process of law-making, especially when the executive is unable to complete the upper house. wants to bypass it somehow. , at least for a while, and create a proven accomplishment.
When we put all this together, a picture emerges where the only effective control over the executive is where the voters have given a fractured mandate and the ruling party is forced to govern in coalition with those allies. with whom he is not. Always see eye to eye. In such a situation, the coalition partners can exercise some degree of control over the executive in the Parliament.
However, when there is a single, majority party at the Center or in the states, there is little Parliament can do. The anti-defection law weeds out dissent within the party. The scope for political opposition to participate is at the discretion of the executive. Biased speakers control the debate to ensure that the executive is safe from public embarrassment at the hands of the opposition. And the upper house is left out of the equation, either by misclassification of money bills or by use of ordinance power.
It is no surprise, then, that the quality of parliamentary debate has declined: this mirrors Parliament’s own structural marginalization under the Constitution. Instead, we have greater executive power: a position that is similar to a presidential system with strong executives, but without the checks and balances and veto points of those systems; Really, the worst of all worlds.
Therefore, even as the new Parliament is being inaugurated, the essential question we must ask is whether, formally, India can be called a parliamentary democracy, or are we slowly moving towards an executive one? turned into a democracy. And if, indeed, we want to return to parliamentarism, what kind of constitutional changes and reforms would it require?
Gautam Bhatia is a lawyer based in Delhi