CSP_Polity : Federalism Constitutional Provisions

Presiding officer - Speaker - Order Order !!!

Continuing our series on Parliamentary reforms.

The parliament is a deliberative platform. Apart from enacting laws, it also has responsibility to accountability  of government whenever it meets. Elected representatives raise debate and discuss issues concerning constituencies and nation at large. In order, to make the house perform its function orderly and efficiently it is essential that someone plays the role of referee. That role in Lok Sabha is played by the Speaker. Unfortunately, the post has been not immune to scrutiny for its alleged partisan role.

Powers & Functions of the Speaker of LS?
Power

• On the order of precedence, ranks sixth, along with the Chief Justice of India.
• can punish a member for their unruly behaviour by suspending them to maintain discipline and decorum in the house 

Functions

• conducts the business in house
• decides on the agenda to be taken up for discussion during the meeting
• permit the moving of various kinds of motions and resolutions such as a motion of no confidence, motion of adjournment, motion of censure and calling attention notice as per the rules.
• also presides over the joint sitting of both houses of the Parliament of India.
• Article 110(3) makes speaker the final authority to decide whether a bill is a Money bill or not.
• Tenth schedule grants Rule making power and Deciding authority on matter of defection.

Issues with the post of Speaker arises from situational discretion and huge power bestowed to the office from constitution and other laws/rules :

• use of voice vote even in passing of budget (in some state assemblies)
• partisan role - selective in taking up issue.
• misuse of power wrt Money bill - to eclipse deliberation in RS.
• misuse of power wrt Anti-defection law
• Article 122 prohibits courts from inquiring into proceedings of Parliament and examining their validity
• Politicization of the post

Important judgments : 

• Kihoto Hollohan case, 1992 - Speaker acts a tribunal while deciding on Schedule X and is subject to judicial review.
• Mohd. Saeed Siddiqui v State of U.P. (2014) SC - decision of Speaker on Money Bill is final. 

Suggestion for Improvement :

• The speaker should apply conscience and play non-partisan role in true spirit of constitution. Must follow the principle "Caesar's wife must be above suspicion."
• A collegium of 3, headed by Speaker and 2 MP as member may be constituted to decide whether a bill is Money bill or not
• the question of Anti-defection may be decided by President after consultation with ECI as suggested by NCRWC 2002.
• A convention should develop as in UK, where elected Speaker resigns from her past party.

Anti-defection law : Time to review it ?

Please see this for basics of Anti-defection such as :

• important amendments 
• what constitute defection
• SC judgement on anti-defection

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It has been more than 3 decades since 52nd constitutional amendment(1985) which added a new Schedule, Tenth, to stop the defection among parliamentarians. The 91st amendment (2003) raised the bar of wholesale defection from 1/3 to 2/3. Let's review it's efficacy and limitations which calls for fine tuning of the law.

Efficacy of Anti-defection law : 

• Provided much needed stability. It has certainly reduced the phenomena of 'aya ram gaya ram' prevalent in 1980s.
• It has also reduced the cases of horse trading.
• Strengthened the position of party over whose ticket MPs contest election.

However, of late anti-defection law in the present form has been felt to be doing more harm than good. Reasons being :

• Stifled individual legislator's voice. MPs/MLAs are representative of their constituencies. Yet they cannot raise will of their constituencies on important issues.
• legislators hostages to political party
• changed the very nature of Westminster model of parliamentary democracy
• fundamental feature of the first-past-the-post system is that it increases the accountability of individual MPs. Anti-defection breaks this link as MPs do not have to justify their individual votes on issues that may be important to their voters.
• removed the need for the government to build a broad consensus for its decisions: ruling party has to convince only the leader of opposition party
• dis-incentivized the individual MPs from taking seriously thinking & researching on any issue.
• at times, it has also led to questioning the neutrality of the post of Speaker, who acts as tribunal on matters pertaining to defection.

Viewed from this perspective, the Tenth Schedule has  violated the fundamental tenets of the Constitution if not the basic structure doctrine.

Thus, it indeed calls for reform. What can they be ? Some of the suggested reforms are : 

• Limiting the areas of applicability of anti-defection law : to such matters as confidence motion, no-confidence motion, adjournment motion, money bill or financial matters.( Dinesh Goswami Committee)
• Law commission in past has also suggested that party issue whip only when government is in danger.
• Reform in post of Speaker : selected legislator should resign from his/her party as a matter of convention as done in UK to make the post more neutral.
• NCRWC 2002 : question of anti-defection may be referred to ECI. 

The above steps will help making legislatures more accountability towards their voters and strengthen the roots of democracy. It will also necessitate the ruling party reach out to individual MPs thereby making most decisions consensus driven.

In the next blog, we will inquire into the relevance of Rajya Sabha ....

This blog is part of "Reforms in Parliament" series. 

Reforms in functioning of Parliament

Parliament is the most visible face of a democracy. An effective parliament is sine qua non for smooth functioning of a country based on rule of law. There has been general decline in function of parliament across the world and more so in India.

Important Facts worth remembering :

• Cost :  running Parliament in sessions costs ₹2.5 lakh per minute
• Session Duration : Lok Sabha - an average of 120 days/year(b/w 1950s-60s).  
• Last decade - an average of 70 days/year.
• Productivity : 2016 winter session was 14%, while that of the Rajya Sabha was 20%
• 2018- Parliament Sees Least Productive Budget Session In 18 Years
• Lok Sabha - 1950s - avg 127 days vs 2017 - 57 days; 1st LS - 72 Bills vs 15th LS - 40 Bills

Major issues plaguing legislature of India (Parliament in particular) are :

• Poor attendance of MPs, 
• Poor quality of debates and 
• pandemonium marking the proceedings - 'federation of anarchists' RS chairman Hamid Ansari
• Presiding officer - an impartial institution?
• Anti-defection law
• Abuse of parliamentary privileges ( primarily against journalists)
• Relevance of Rajya Sabha  
• Voting Method - Closed/open ballot, e-voting or voice vote(Uttarakhand budget passage issue)
• Low Women Representation- neither house seen women MPs cross the 12% mark(108th CAA)
• Separation of power - Parliamentary secretary, MPLAD, Ordinance 

Ways of Disqualification of MP :

• Office of Profit : Art 102(1) & 191(1)
• Anti-Defection  : Schedule X
• Parliamentary law : RPA, 1951

In this blog, we look at decline of meaningful debates in parliament with some depth and explore feasible solutions.

Cause of decline in debates :

• Extremely competitive party system
• Lack of majority of ruling party in Upper house
• Anti-defection law has also gagged individual MPs belonging to a party
• Ruling parties have failed to reach out to opposition on major policy issues.
• Rise of coalition government
• Live telecasting of session (but state legislative sessions not televised?)
• Decreased ideological differences between party - "catch-all" parties.

Consequences of this decline in parliamentary debates :

• Poor accountability of executive 
• Hasty & ad-hoc manner of passage of bills
• Increasing adoption of Ordinance route & money bill route 
• clubing of matters other than listed in Article 110 and passing as money bill e.g. on AADHAR
• No private bills passed was in 1970 - only 14 since independence  
• Loss of public faith in democracy
• Cost : not merely monetary but in terms of depriving the elected members from doing their constitutionally mandated task

This has resulted in very low productivity of the Parliament despite the cost of running parliament being very high.

How to solve this issue ? Well, it will require urgent reform in Constitution & rules of procedure in Parliament : 

• Political wherewithal is required to give priority to policy/national-agenda over party agenda.
• Anti-defection law needs recast in order to empower our legislators --> limit it to important issues like no confidence motion, money bill etc.
• Impartiality of Presiding officer - Lok Sabha speaker should resign from his/her party as done in England.
• Presiding officer need to take all steps necessary to ensure order in the House as empowered by the Rules.
• Opposition party needs to have more say in setting the agenda of the house. 
• Increase in duration of parliament e.g. UK/USA session entire year
• There is need of continuous communication b/w ruling party & opposition. As country's first PM Nehru ji used to say the ruling party & the opposition are like the two wheels of same cart. Both needs to move only then the nation will move forward.

"Democracy says that opposition must have its say and the government must have its way because it is as per the mandate of the people". VP M Venkaiah Naidu

Other suggestions :

A commission to examine our parliamentary system on lines on NCRWC is the need of the hour

National Commission to review the working of the Constitution recommended 120 & 100 days for LS and RS, respectively. 

Passage of the Women’s Reservation Bill (108th amendment) reserving 33% of all seats in Parliament and State legislatures for women.

Institutionalized process - needs a parliamentary budget office, akin to the U.S. Congressional Budget Office

In other blogs, we shall see remaining parts...