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GS Paper: Parliament & State Legislatures

  • What Indian lawmaking needs: More scrutiny, less speed

    Context

    The recent Monsoon Session of Parliament is proof that the speed of passing laws trumps their rigorous scrutiny in our legislative process.

    Issues with lawmaking process in India

    1) Avoiding pre-legislative scrutiny

    • In our parliamentary system, a majority of laws originate from the government.
    • Each ministry decides the path its legislative proposals will take from ideation to enactment.
    • For example, last year, the Shipping Ministry requested public feedback on the two bills — Marine Aids and Inland Vessels.
    • This mechanism enables the strengthening of the legal proposal through stakeholder inputs before being brought to Parliament.
    • However, ministries expedite their bills by not putting them through a similar pre-legislative scrutiny process.

    2) Misuse of Ordinance route

    • Over the years, successive governments have exploited the spirit of this constitutional provision.
    • Governments have promulgated an ordinance a few days before a parliamentary session, cut a session short to issue one, and pushed a law that is not urgent through the ordinance route.
    •  But the executive sometimes fails to follow through on the legislative urgency.
    • Bringing in law through the ordinance route also bypasses parliamentary scrutiny.
    • But parliamentary committees rarely scrutinise bills to replace ordinances because this may take time and defeat the issuing of the ordinance.
    • Over the last few years, bills like GST, Consumer Protection, Insolvency and Bankruptcy, Labour Codes, Surrogacy, and DNA Technology have benefited from parliamentary committees’ scrutiny.
    • Their closed-door technical deliberations, inputs from ministry officials, subject-matter experts, and ordinary citizens have strengthened government bills.

    3) Delay in rule framing

    • Unnecessary urgency in getting laws passed by Parliament does not result in their immediate implementation.
    • For the law to work on the ground, the government is supposed to frame rules.
    • Last year the Cabinet Secretary twice requested the personal intervention of secretaries heading the Union ministries to frame regulations for bringing into force the laws made by Parliament.
    • Before the Monsoon Session, he wrote a follow-up letter on similar lines to his colleagues.

    Implication of fast-tracking the law-making

    • Difficulty in achieving desired outcomes: Hurriedly-made and inadequately-scrutinised laws hardly ever achieve their desired outcomes.
    • Wastage of time of legislature: Enacting statutes without proper scrutiny also wastes the legislature’s time when the government approaches Parliament to amend such laws.
    • Loss of opportunity: But the unmeasurable cost of a poorly-made law is in the loss of opportunity to an entire nation that has to comply with it.

    Way forward

    • The government must ensure that it identifies the gaps in our legal system proactively.
    • All its bills should go through pre-legislative scrutiny before being brought to Parliament.
    • The legislature, on its part, should conduct in-depth scrutiny of government bills.
    • Mandatory scrutiny of bills by parliamentary committees should become the rule and not the exception.

    Conclusion

    India is in urgent need of course correction in its legislating process. What we need is a robust law-making process.

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  • How are Rajya Sabha members punished for misconduct in the House?

    Context

    The Chairman of the Rajya Sabha is reportedly contemplating action against MPs who, he thinks, were involved in the fracas in the House.

    Provisions in House Rules of Rajya Sabha for punishing members

    1) For conduct inside the House

    • Ground for punishment: Rule 256 of the Rajya Sabha’s Rules of Procedure specifies the acts of misconduct: Disregarding the authority of the chair, abusing the rules of the council by persistently and willfully obstructing the business thereof.
    • However, the power to suspend a member is vested in the House, not in the chairman.
    • Under the rule, the maximum period of suspension is for the remainder of the session.
    •  By convention, a suspended member loses his right to get replies to his questions.
    • Thus, suspension from the service of the House is regarded as a serious punishment.
    • But, surprisingly, the rules do not spell out the disabilities of a suspended member.
    • These are imposed on them as per conventions or precedent.
    • Suspension for the remainder of the session makes sense only when they are suspended immediately after the misconduct has been noticed by the chair.
    • The rules of the House do not empower Parliament to inflict any punishment on its members other than suspension for creating disorder in the House.

    2) Misconduct outside the House

    • For the acts of misconduct by the MPs outside the House, which constitute a breach of privilege or contempt of the House, usually the privilege committee investigates the matter and recommends the course of action and the House acts on it.
    • A special committee is appointed usually when the misconduct is so serious that the House may consider expelling the member.
    • Special committee was appointed in 2005 to inquire into the issue of MPs accepting money for raising questions in Parliament.
    • So, special ad-hoc committees are appointed only to investigate serious misconduct by MPs outside the House.

    Issue in the present context

    • It appears that the Rajya Sabha secretariat has prepared a report on the incident in the Rajya Sabhi, which accuses some MPs of assaulting security personnel.
    • But special ad-hoc committees are appointed only to investigate serious misconduct by MPs outside the House.
    • No special committee is required to go into what happens before the eyes of the presiding officer inside the House.
    • As per the rules of the House, they need to be dealt with then and there.
    • The rules do not recognise any punishment other than suspension for a specific period and in this case, the Session is already over.
    • Article 20 of the Constitution prohibits a greater penalty than what the law provided at the time of committing the offence.

    Conclusion

    Punishing the MPs for their misconduct in the House is restricted by the provision in the House rules. These restrictions need to be looked into in the face of growing disruption by the members.

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  • Role of Speaker

    Context

    The decline in the functioning of India’s Parliament — and state assemblies as well — is caused by one primary reason: The lack of independence and impartiality of the Speaker.

    Important role of the Speaker

    • Our Constitution, after extensive debate, adopted the Westminster model of governance.
    • In the Lok Sabha, as in the United Kingdom, the Speaker is the supreme authority; he has vast powers and it is his primary duty to ensure the orderly conduct of the business of the House.
    • Constitutional law points out the two essential qualities of a Speaker: Independence and impartiality.
    • As the principal spokesperson of the Lok Sabha, the Speaker represents its collective voice.
    • Indeed, the supremacy of Parliament is emphasised by Article 75(3) of the Constitution: “The Council of Ministers shall be collectively responsible to the House of the People”.
    •  Pandit Nehru referred to the Speaker as “the symbol of the nation’s freedom and liberty” and emphasised that Speakers should be men of “outstanding ability and impartiality”.

    How role of Speaker matters in functioning Legislature

    • Power to allow debate or discussion: It is the Speaker’s duty to decide what issues will be taken up for discussion.
    • He has the sole discretion to permit an adjournment motion to be tabled or to admit a calling attention notice, if the issue is of urgent public importance.
    • The present practice of the Speaker continuing to be an active member of the ruling party has the inevitable result of his refusing to allow any debate or discussion that may be essential in national interest but may embarrass the ruling party.
    • This inevitably leads to constant disruption of Parliament by the Opposition.
    • The stalling of parliamentary proceedings has led to the passing of important bills in several sessions without any discussion.
    • Violation of separation of power between legislature and executive: The most dangerous consequence is the vastly increased powers that the executive — the bureaucracy — begins to command by default.
    • In 1951, a nine-judge bench of the Supreme Court (In Re Delhi Laws Act Case) held that essential legislative functions cannot be delegated to the bureaucracy; law-making must remain the domain of the legislature.
    • This constitutional mandate is now increasingly and consistently being violated by issuing rules and notifications that have far-reaching consequences.
    • The new rules on information technology and electronic commerce are clear instances of changes that should have come about by a parliamentary law.
    • And worse still is the power given to the executive to issue retrospective notifications — a step unknown to any civilised democracy.
    • Partisan conduct in anti-defection law issues: Several judgments on the anti-defection law have been rendered by the Supreme Court.
    • A common factor that shows up in these rulings is the blatant, partisan conduct of speakers in state assemblies.

    Way forward

    • Speaker should resign from Party: It should be made mandatory that the Speaker ought to resign from his party and his sole allegiance must be to the Constitution and to maintaining the dignity of the House.
    • The separation of powers is part of the basic structure of our Constitution.
    • It is imperative that the Speaker of every legislature resigns from his party to honour his constitutional obligation of independence and impartiality. 
    • This must be accepted as the primary responsibility of every ruling party, both at the Centre and in each state, and made into a constitutional convention.

    Conlcusion

    The option is a binary: Either allow Parliament and state legislatures to descend into terminal decline or make the Speaker truly independent and let every legislature perform its constitutional function.

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  • Official Opposition in Parliament and State Legislatures

    The 60-member Nagaland Assembly now has no MLA in the Opposition.

    Official Opposition

    • It is a term used in Parliament and State Legislatures to designate the political party which has secured the second largest number of seats in either upper or lower houses.
    • In order to get formal recognition in either upper or lower houses, the concerned party must have at least 10% of the total strength of the house.
    • A single party has to meet the 10% seat criterion, not an alliance.
    • Many of the Indian state legislatures also follow this 10% rule while the rest of them prefer the single largest opposition party according to the rules of their respective houses.

    Why study the Opposition?

    • The Rajya Sabha Chairman Venkaiah Naidu recently broke down when he condemned the violent ruckus that erupted in the Upper House very recently.
    • This has raised questions about the decency of the conduct of our elected representatives.

    Role of the Opposition

    • The role of the opposition in the legislature is basically to check the excesses of the ruling or dominant party, and not to be totally antagonistic.
    • Their main role is to question the government of the day and hold them accountable to the public. This also helps to fix the mistakes of the Ruling Party.
    • The Opposition is equally responsible for upholding the best interests of the people of the country.
    • They have to ensure that the Government does not take any steps, which might have negative effects on the people of the country.

    In the legislature, Opposition Party has a major role, which is:

    1. Constructive criticism of the government.
    2. Putting restriction of the arbitrariness of ruling party
    3. Safeguarding liberty and right of people
    4. Preparation to form a government
    5. Expression of public opinion

    Leader of the Opposition

    • They are the politicians who lead the official opposition in either House of the Parliament of India.
    • The LoP is the parliamentary chairperson of the party with the most seats after the government party.
    • S/He is given the status of a minister in recognition of his importance.
    • The LoP received statutory recognition through the Salary and Allowances of Leaders of Opposition in Parliament Act, 1977.

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  • Issue of the oath of an elected representative

    Context

    Some Cabinet Ministers in Karnataka who took oath recently stood out from the rest.  All these oaths run against the spirit of the Constitution.

    Background of agnostic Constitution

    • The public officials who took office under the Government of India Act, 1935 had to take oath which had no mention of God.
    • During the Constituent Assembly debate, B.R. Ambedkar proposed the Preamble, “We, the people of India…”.
    •  H.V. Kamath moved an amendment to the Preamble, “In the name of God, we, the people of India…”.
    • To this proposal, another member, A. Thanu Pillai said that if this amendment is accepted it would affect the fundamental right of freedom of faith.
    • He said that a man has a right to believe in God or not, according to the Constitution.
    • H.N. Kunzru opposed Kamath’s amendment stating that in a matter that vitally concerns every man individually, the collective view should not be forced on anybody.
    • The amendment was defeated, thereby excluding ‘God’ from the Preamble.
    • Thus, our founding fathers gave us an agnostic Constitution.

    What are provisions in Consitution

    • The public officials who took office under the Government of India Act, 1935 had to take oath which had no mention of God.
    • However, the framers of the Indian Constitution rejected this conception of secularism.
    • Constitution gives office-holders an option to swear in God’s name if they so wished.
    • The Supreme Court of India observed in 2012 that the oath by an elected representative should be taken “in the name of God” if the person is a believer or should be “solemnly affirmed” if the person is a non-believer.
    • The Supreme Court said that the oath of an elected representative should be in strict compliance with the wordings of the Constitution. 

    Way forward

    • As the Republic belongs to all the citizenry, irrespective of whether he is a theist, atheist or agnostic, and irrespective of his caste or religion, a person occupying a constitutional post should take oath in the format of ‘“solemnly affirm”.
    • The Constitution should be amended accordingly.

    Conclusion

    If a person takes the oath in the name of a God affiliated to a particular religion or caste, the citizenry cannot expect the absence of affection or ill-will from him. The allegiance of a person holding a constitutional post should only be to the Constitution.

  • Analysing decline of the role of Parliament in present context

    Context

    This 75th year of India’s Independence feels like what its first year of freedom may have been like. The pandemic era defined by large-scale loss, lack of adequate state infrastructure and deep economic uncertainty — on the face of it — is reminiscent of the Partition years.

    Declining role of Parliament

    1) Low functioning

    • In 2020, Parliament sat in session for 33 days.
    • According to PRS Legislative Research (PRS), in the 2021 Monsoon Session, the Lok Sabha was scheduled to work for six hours per day for 19 days.
    • Instead, it sat for 21 hours in total or 21 per cent of what was conceived.
    • Brazil’s Parliament used an application called Infoleg during the pandemic and functioned at higher rates than in pre-pandemic times.
    • The United States Congress met physically for 113 days in 2020. In the year before, they met for 130 days.
    • In the past 10 years, the Rajya Sabha has functioned for less than 25 per cent of its scheduled time.

    2) Neglect of the role of Parliamentary Committees

    • According to PRS, none of the 15 bills introduced in this Monsoon Session 2021 has been referred to a Parliamentary Committee.
    • In this current Lok Sabha commencing 2019, only 12 per cent of the bills introduced have been referred to committee.
    • By contrast, the 16th Lok Sabha (2014-2019) had 27 per cent and the 15th Lok Sabha (2009-2014) had 71 per cent of bills referred to standing committees.
    • More significantly, fewer and fewer drafts of key legislation are being debated across the political aisle before becoming law.

    3) No discussion of supplementary budget

    • In this Lok Sabha, nine minutes were spent discussing and passing the supplementary budget that included a Rs 15,750 crore Covid-19 Emergency Response and Health System Preparedness Package.
    • This is the functioning of the legislature — increasingly convened less and debates are few.

    Contrast with functioning of Parliament when country faced partition

    •  The drafting of India’s Constitution started in December 1946, when the Constituent Assembly first met, seven months before Independence in August 1947.
    • What makes these years of our constitutional founding so dramatic, was that the backdrop to our founding was as torturous as this pandemic era.
    • As Delhi was slowly filling up with refugees, India’s dual function legislature functioned as Parliament by morning and Constituent Assembly in the afternoon.
    • The first Constituent Assembly was meant to comprise 296 members, but its initial session had only 210 members in attendance.
    •  The assembly faced a boycott by the rest of the members.
    • The Constituent Assembly caucus of the founding Congress Party included many members from outside the party.
    • These members from across the political-ideological spectrum were able to arrive at decisions using a mixture of techniques of problem-solving, persuasion, bargaining and politicking.

    Conclusion

    The functioning of the Partition era Constituent Assembly is held up as a model of nation-building. Our political class today needs to learn from the makers of our Constitution and stop the declining role of our Parliament today.

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  • Who is a Whip?

    The party in the opposition has appointed two members as the party’s whips in the Upper House.

    Who is a Whip?

    • A whip is an official of a political party whose task is to ensure party discipline in a legislature.
    • This means ensuring that members of the party vote according to the party platform, rather than according to their own individual ideology or the will of their donors or constituents.
    • Whips are the party’s “enforcers”.
    • They try to ensure that their fellow political party legislators attend voting sessions and vote according to their party’s official policy.
    • Members who vote against party policy may “lose the whip”, effectively expelling them from the party.

    Answer this PYQ:

    Which one of the following Schedules of the Constitution of India contains provisions regarding anti-defection? (CSP 2017)

    (a) Second Schedule

    (b) Fifth Schedule

    (c) Eighth Schedule

    (d) Tenth Schedule

     

    [wpdiscuz-feedback id=”uz4tdbiarn” question=”Please leave a feedback on this” opened=”1″]Post your answers here.[/wpdiscuz-feedback]

    Whips in India

    • In India, the concept of the whip was inherited from colonial British rule.
    • Every major political party appoints a whip who is responsible for the party’s discipline and behaviors on the floor of the house.
    • Usually, they direct the party members to stick to the party’s stand on certain issues and directs them to vote as per the direction of senior party members.

    What happens if a whip is disobeyed?

    • A legislator may face disqualification proceedings if she/he disobeys the whip of the party unless the number of lawmakers defying the whip is 2/3rds of the party’s strength in the house.
    • Disqualification is decided by the Speaker/Chairman of the house.

    Limitations of whip

    • There are some cases such as Presidential elections where whips cannot direct a Member of Parliament (MP) or Member of Legislative Assembly (MLA) to vote in a particular fashion.

    Types of whips

    There are three types of whips or instructions issued by the party

    • One-line whip: One-line whip is issued to inform members of a party about a vote. It allows a member to abstain in case they decide not to follow the party line.
    • Two-line whip: Two-line whip is issued to direct the members to be present in the House at the time of voting.
    • Three-line whip: Three-line whip is issued to members directing them to vote as per the party line.

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  • Disruption of Parliament

    Context

    Last week, a newspaper reported that the government is considering curtailing the monsoon session of Parliament on account of disruptions.

    Reasons for disruptions

    • In 2001, a day-long conference was held in the Central Hall of Parliament to discuss discipline and decorum in legislatures.
    • The inputs of participants of conference helped identify four reasons behind the disorderly conduct by MPs.
    • Inadequate time: The first was dissatisfaction in MPs because of inadequate time for airing their grievances.
    • Unresponsive attitude: The second was an unresponsive attitude of the government and the retaliatory posture of the treasury benches.
    • Adherence to norm: The third was political parties not adhering to parliamentary norms and disciplining their members.
    • Lack of action: The absence of prompt action against disrupting MPs under the legislature’s rules.

    Suggestions

    • Enforcement of a code of conduct for MPs and MLAs: The Lok Sabha has had a simple code of conduct for its MPs since 1952.
    • Newer forms of protest led to the updating of these rules in 1989.
    • Accordingly, members should not shout slogans, display placards, tear away documents in protest, play cassettes or tape recorders in the House.
    • A new rule empowers the Lok Sabha Speaker to suspend MPs obstructing the Houses’ business automatically.
    • But these suggestions have not been enforced so far.
    • Increase in working days: As recommended by the 2001 conference, there should be an increase in the working days of Parliament.
    • The conference had also resolved that Parliament should meet for 110 days every year and larger state legislative assemblies for 90 days.
    • Successive governments have shied away from increasing the working days of Parliament.
    • Our legislature should meet throughout the year, like parliaments of most developed democracies.
    • The concept of opposition days: In the United Kingdom, where Parliament meets over 100 days a year, opposition parties get 20 days on which they decide the agenda for discussion in Parliament.
    • The main opposition party gets 17 days and the remaining three days are given to the second-largest opposition party.
    • Canada also has a similar concept of opposition days.
    • This can also be done in India.

    Conclusion

    More strengthening of our Parliament is the solution to prevent disruption of its proceedings. It is the only mechanism to ensure that disrupting its proceedings or allowing them to be disrupted ceases to be a viable option.

  • Emigration Bill 2021 does not go far enough

    Context

    The Emigration Bill 2021 could be introduced in Parliament soon and presents a long-overdue opportunity to reform the recruitment process for nationals seeking employment abroad.

    An overview of Emigration Act 1983

    • Labour migration is governed by the Emigration Act, 1983.
    • The Act sets up a mechanism for hiring through government-certified recruiting agents — individuals or public or private agencies.
    • It outlines obligations for agents to conduct due diligence of prospective employers,
    • Sets up a cap on service fees.
    • Establishes a government review of worker travel and employment documents (known as emigration clearances) to 18 countries mainly in West Asian states and South-East Asian countries.

    What are the improvements in Emigration Bill 2021?

    • It launches a new emigration policy division.
    • It establishes help desks and welfare committees.
    • It requires manpower agencies to conduct pre-departure briefings for migrants.
    • It increases accountability of brokers and other intermediaries who are also involved in labour hiring.

    Shortcoming in Emigration Bill 2021

    • Lacks human rights framework: The 2021 Bill lacks a human rights framework aimed at securing the rights of migrants and their families.
    • For example, in a country such as the Philippines, it explicitly recognises the contributions of Filipino workers and “the dignity and fundamental human rights and freedoms of the Filipino citizens”.
    • Workers to bear recruitment payments and service charges: the Bill permits manpower agencies to charge workers’ service fees, and even allows agents to set their own limits.
    • This provision goes against International Labour Organization (ILO) Private Employment Agencies Convention No. 181 and the ILO general principles and operational guidelines for fair recruitment.
    • The ILO Convention and guidelines recognises that it is employers, not workers who should bear recruitment payments including the costs of their visas, air travel, medical exams, and service charges to recruiters.
    • Criminalise worker: The Bill permits government authorities to punish workers by cancelling or suspending their passports and imposing fines up to ₹50,000 for violating any of the Bill’s provisions.
    • Criminalising the choices migrant workers make is deplorable, runs contradictory to the purpose of protecting migrants and their families, and violates international human rights standards.
    •  Recruiters and public officials could misuse the law to instil fear among workers and report or threaten to report them.
    • Gender dimension not adequadely addressed: This Bill does not also adequately reflect the gender dimensions of labour migration where women have limited agency in recruitment compared to their counterparts.
    • Women are more likely to be employed in marginalised and informal sectors and/or isolated occupations in which labour, physical, psychological, and sexual abuse are common.
    • Limited space for representation: The Bill also provides limited space for worker representation or civil society engagement in the policy and welfare bodies that it sets up.

    Way forward

    • The Ministry of External Affairs must start at the top, and draft a clearer purpose which explicitly recognises the contributions of Indian workers, the unique challenges they face, and uphold the dignity and human rights of migrants and their families.

    Conclusion

    The new Bill is better than the Emigration Act 1983, but more reforms are needed to protect Indian workers.

  • What is Privilege Motion?

    A spokesperson of the non-ruling political party has said that he will move a privilege motion against the Health Minister for misleading Parliament that no deaths were reported specifically because of shortage of oxygen.

    Breach of Privilege

    • Parliamentary privilege refers to the right and immunity enjoyed by legislatures, in which legislators are granted protection against civil or criminal liability for actions done or statements made in the course of their legislative duties.
    • The powers, privileges and immunities of either House of the Indian Parliament and of its Members and committees are laid down in Article 105 of the Constitution.
    • Article 194 deals with the powers, privileges and immunities of the State Legislatures, their Members and their committees.

    What is a privilege motion?

    • Parliamentary privileges are certain rights and immunities enjoyed by members of Parliament, individually and collectively, so that they can “effectively discharge their functions”.
    • When any of these rights and immunities are disregarded, the offence is called a breach of privilege and is punishable under law of Parliament.
    • A notice is moved in the form of a motion by any member of either House against those being held guilty of breach of privilege.
    • Each House also claims the right to punish as contempt actions which, while not breach of any specific privilege, are offences against its authority and dignity.

    What are the rules governing privilege?

    • Rule No 222 in Chapter 20 of the Lok Sabha Rule Book and correspondingly Rule 187 in Chapter 16 of the Rajya Sabha rulebook govern privilege.
    • It says that a member may, with the consent of the Speaker or the Chairperson, raise a question involving a breach of privilege either of a member or of the House or of a committee thereof.
    • The rules however mandate that any notice should be relating to an incident of recent occurrence and should need the intervention of the House.
    • Notices have to be given before 10 am to the Speaker or the Chairperson.

    What is the role of the Speaker/Rajya Sabha Chair?

    • The Speaker/RS chairperson is the first level of scrutiny of a privilege motion.
    • The Speaker/Chair can decide on the privilege motion himself or herself or refer it to the privileges committee of Parliament.
    • If the Speaker/Chair gives consent under Rule 222, the member concerned is given an opportunity to make a short statement.

    What is the privileges committee?

    • In the Lok Sabha, the Speaker nominates a committee of privileges consisting of 15 members as per respective party strengths.
    • A report is then presented to the House for its consideration. The Speaker may permit a half-hour debate while considering the report.
    • The Speaker may then pass final orders or direct that the report be tabled before the House.
    • A resolution may then be moved relating to the breach of privilege that has to be unanimously passed.
    • In the Rajya Sabha, the deputy chairperson heads the committee of privileges, which consists of 10 members.

    Answer this PYQ in the comment box:

    Q.With reference to the Parliament of India, which of the following Parliamentary Committees scrutinizes and reports to the House whether the powers to make regulations, rules, sub-rules, by-laws etc. conferred by the constitution of delegated by the Parliament are being properly exercised by the Executive within the scope of such delegation?

    (a) Committee on Government Assurances

    (b) Committee on Subordinate Legislation

    (c) Rules Committee

    (d) Business Advisory Committee