Parliament and State Legislatures

Anti-Defection

                The 52^nd and 93^rd Amendments to the constitution added the Tenth Schedule which laid down the process of disqualification of legislators in the context of defection. In the time of Aaya ram Gaya ram, the anti-defection law was conceptualized to provide political stability and safeguard the sanctity of democracy.

Why Anti-defection law?

1. Mandate of People
2. Reduces the role of money
3. Cultivates party loyalty and party discipline
4. Stability of government in Parliamentary Democracy

Issues of Anti-Defection

• Freedom of Speech: The mandatory directive of the party and anti-defection threat reduces thinking lawmakers to mere numbers for passing bills. In the Kihotto Holohan judgement, the Supreme court held anti-defection law to be within the basic structure of the constitution
• Role of Speaker: The speaker’s discretion in deciding on disqualifications of defecting members has been controversial. Questions have been raised on the partisan decisions
• Loopholes in law
  • The exception of 2/3^rd party members defecting is anti-thetical to the very concept of anti-defection
  • A nominated member is provided with 6 months as time frame for joining political party without inviting defections. This provision can be manipulated to manufacture majorities diluting will of people
• Quality of Debates: The non-democratic nature of the defection law is bound to reduce quality of debates with increasing polarization on the floor of the house narrowing the confines of debate
• Reduces accountability to people and parliament

Suggestions

• Rationalize Jurisdiction:
  • Dinesh Goswami Committee: Limit anti-defection to
    • Members voluntarily giving up party membership
    • Member votes or abstains contradictory to party direction during no-confidence motion
  • Change Deciding Authority
    • Election Commission: Issue of disqualification should be decided by President/ Governor
  • Remove Loopholes: Law commission has opined that exemptions for splits and mergers should be deleted. Pre-poll fronts should be considered as political parties
  • Foster Deterrence: The Constitution Review Commission has opined that defectors should be barred from holding public office or remunerative political cost

Conclusion

                With the increasing role of money and the danger of criminalization, anti-defection laws cannot be done away with. It needs to be reformed to ensure that intra-party democracy and parliamentary spirit thrives fostering an amalgam of diverse views from multiple sections.

Parliament –Privileges and Issues Arising out of these

                Parliamentary privileges are special rights, immunities and exemptions handed out to members of 2 houses, their committees and members. They help maintain authority, dignity, honour and ensure that members face no obstruction in discharging duties vested in them. Parliamentary privileges enable independent and effective functioning of the institution of parliament.

Collective Privileges

Ensuring independence – Self-Regulating

• Court is prohibited from enquiring into proceedings of house or its committees
• Parliament can define its own rules and regulations for conduct of business and adjudication of such matters
• Can hold secret sittings excluding strangers from its proceedings

Upholding Dignity – Face Saving

• Right to receive information regarding arrest, imprisonment, conviction and release of a member
• No person can be arrested and no legal process can be served within the precincts of the house without permission of presiding officer

Gaining Authority – Judicial Control

• Article 105 provides the houses of parliament with right to publish its own reports, debates and other proceedings and the right to prohibit others from publishing the same
• Punish members as well as others for breach of privilege
• Institute enquiries and order attendance of witness and acquire relevant papers and records

Individual privileges

Freedom of Speech in parliament (Article 105): No member is liable to any proceedings in court for anything said or any vote given by him in Parliament or its committees. This freedom is subjected to standing orders regulating procedure of parliament.

Judicial Exemptions: Members of the parliament cannot be arrested with regard to civil cases 40 days before the session and 40 days after. They can refuse to give evidence and appear as witness in cases when the Parliament is session citing want of time.

Breach of Privilege

                When any individual or authority disregards or attacks exemptions, rights and immunities, either of member in individual capacity or of the house, collectively, the offence is termed as Breach of Privilege and is punishable by the house.

Contempt of the House

                Any act or omission which obstructs a house of parliament, its members or officers from discharging their duties or which tends to produce results against dignity, authority and honour of the house is treated as contempt of the House.

                It has wider implications than a simple breach of privilege which merely constitutes a subset of contempt of house, i.e. a contempt of house may simply include a breach of privilege.

Source of Privileges

1. Constitution of India: Article 105 provides for privilege of freedom of speech and right to publication of proceedings
2. Various laws made by Parliament
3. Rules of Both Houses
4. Parliamentary Conventions
5. Judicial Interpretation

The 44^th amendment act provided that parliamentary privileges for both houses, members and committees are to be those which they had on the date of its commencement until defined by Parliament. The Parliament till now has not made any special law to exhaustively codify all privileges.

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Read Also Anti Defection Law in India

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Issues with Privileges

Danger of Non-Codification: Parliament is yet to codify all privileges exhaustively which causes a lack of clarity with regard to parliament’s privileges. The non-codification also arms parliament with wider discretion that may abused to curb civil rights

Curbing right to dissent: Houses of parliament may exploit the discretion to curb dissent of citizens and civil society organizations thus debilitating healthy debate and deliberation subduing vibrant democracy in India

Tilting Balance of Power: Parliamentary privileges were envisaged with ensuring independent functioning of parliament. Lack of clarity regarding the same may affect the check and balance mechanism between legislature and judiciary

Reduced Accountability: Excessive and abusive usage of privileges reduces accountability of houses of parliament, members and committees for their actions and inactions vital to sustenance of a free democracy

Un-parliamentary Behaviour: Wider interpretations of privileges are often misused by legislators for initiating hateful, ill-thought speeches and other un-parliamentary activities such as rushing to the well of the house etc.

Why un-codified?

• Maximize privileges: The un-codified privileges leave an ambiguity which enables houses of parliament to maximize capability of freedom of speech and other privileges which help it to function as an effective and efficient institution. It reduces obstruction to parliamentary proceedings and ensures houses retain their authority, dignity and honour
• Separation of Powers: Leaving the privileges un-codified limits judicial interference and scrutiny as to matters and proceedings within the houses of parliament enhancing its independence from other organs of the state
• Self-Regulating: The parliament has defined its own rules, procedures and regulations regarding proceedings and conduct of business in the houses that are elaborate enough to provide a check on usage of privileges. Hence a separate exhaustive list of privileges may not be deemed necessary

Way Forward

• Regulating Conduct of Business: Presiding officers have to ensure that rules of conduct of business are religiously followed by members of parliament. He may submit a report regarding the same to the president. Any members acting in contravention may be made liable to punishment, suspension from the house.
• Codification: Parliament can exhaustively augment and codify existing privileges from all sources for increased clarity that is better for healthy functioning of democracy and for harmonious balance between organs of the state

Parliamentary Committees

The parliamentary committees are institutions that provide avenues for accountability, cooperation, expertise and engagement in the process of law-making.

Potential of Parliamentary Committees

1. Specialization: Each parliamentary committee is specialized in a particular domain. This enables members to develop expertise and holistically analyse issues at their forefront
2. Accountability: They provide scrutiny and constructive criticism to government policy. The Public Accounts Committee by an ex-post facto analysis ensures the government remains accountable for spending tax payers money
3. Knowledge Reservoir: Parliamentary committees contain volumes of information that MPs can constructively use during discussions on policy and law making.
4. Legislative Assistance: Many Ad-hoc parliamentary committees resolve issues on bills.
   1. Prevention of Corruption amendment bill passing through various committees in Rajya Sabha has seen several issues get addressed
5. Engagement with Stakeholders: The committees can engage with civil society and expertise to gain feedback on important issues
6. Financial Propriety: The Estimates Committee ensures financial prudence in allocation of government resources. Thus committees check on economy of expenditure and ensure each penny of the tax payer is put to productive use
7. Smooth Transaction of Business: The Administrative committees of the parliament provide for smooth conduct of affairs, allocation of time and setting agendas in the parliament

Issues in Functioning of Parliamentary Committees

1. Fewer Bills Referred: Only 27% of bills in 16^th Lok Sabha have been referred. In contrast, 71% were referred during the 15^th Lok Sabha
2. Poor Attendance of members in committees
3. Short tenures in committees leaves little time for specialization
4. Little discussion: The recommendatory nature of committee reports has diluted their mandate of accountability
5. Lack of technical expertise to delve into intricate matters of law
6. Politicization of proceedings of committee
7. The ex-post facto nature of many of the committees including the PAC disables them from achieving financial prudence

Suggestions

1. Refer more bills
2. Make attendance mandatory and link it to membership of committee
3. Extend tenures and provide workshops for capacity building of law makers in parliamentary committees. Develop domain expertise for members of committees
4. Executive Interaction: Minister- committee interactions can help achieve better convergence with committee recommendations. This can also serve as an extra instrument of accountability
5. Standing Committee on Economy can be created

Conclusion

                The parliamentary committees have admirably functioned over the years to enhance quality of legislation and serve as a check on executive action. There needs to be a systemic strengthening of this parliamentary culture to evolve consensus in law formulation, public expenditure and government policy through the instrument of parliamentary committees.