How a benign provision from the Government of India Act, 1935 could ‘virtually’ hold the government accountable in COVID-19 times

A perusal of the rules for both Houses of Parliament would make it clear that no amendment is required to ensure that the Houses or the parliamentary committees meet virtually.
How a benign provision from the Government of India Act, 1935 could ‘virtually’ hold the government accountable in COVID-19 times

India is going through tough times. We have a pandemic which is yet to reach its peak, an ambitious neighbour attempting to arm-twist us, and locusts swarming across north India threatening our agricultural economy while we are yet to overcome a pandemic-induced migrant crisis.

Amidst all of this, since the imposition of multiple lockdowns and the gradual easing of the same, we have seen sudden concentration of power with the Union Ministry of Home Affairs (MHA) and the office of the Prime Minister. All dos and don’ts, by virtue of the powers under the Disaster Management Act, 2005 have been communicated to states and people through various notifications of the MHA.

Some have labelled this as a poor ‘one size fits all’ strategy, while alleging over-centralisation of powers, while others have made more serious allegations of undermining the Indian federal structure. While one may choose to attack or defend the ruling regime on these grounds, the need to find innovative methods to keep government accountable while this pandemic lasts cannot be questioned.

The Indian Constitution envisages three major roles for Parliament: representation, law-making, and accountability. While law making powers are found within several provisions read with Schedule VII, provisions pertaining to representation are found under Article 80 and Article 81.

Relevant to our discussion is Article 75(3), which states that the ‘Council of Ministers shall be collectively responsible to the House of the People’. However, legislatures could only hold the executive accountable when the House is summoned by President (on the advices of Cabinet) or when the Parliamentary Committees meet. With the budget session adjourned sine die on March 23, and no alternative mechanism of ensuring continuity of Parliament, it is becoming increasingly difficult for the legislature to hold the executive responsible.

As per the Indian Constitution, the President has time until September 23 to summon the House. Yet, traditionally, the Monsoon Session of Parliament begins in first week of July. Until now, there has been no official communication from the President’s office about a future session of Parliament.

The reasons for the delay are also understandable. The Secretary General of the Lok Sabha and Rajya Sabha have expressed their helplessness in assuring social distancing within Parliament. With social distancing norms in place, Parliament can accommodate 60 members in the Rajya Sabha and 100 members in the Lok Sabha. Additionally, while Members of Legislative Assemblies may come from within the same state, Members of Parliaments come from across the country. With differing quarantine rules for different states, this may cause a lot of confusion and compromise efficiency. Therefore, with the average age of Lok Sabha MPs at 55, we need to find methods to keep them accountable while ensuring them safety.

Globally, different governments have responded with varying degrees of accountability during the pandemic. Keeping up the traditional parliamentary methods of ensuring government accountablity, we saw Maldives become the world’s first parliament to go virtual after which countries including Canada and United Kingdom decided to take democracy online.

Maldives becomes the world’s first Parliament to go virtual
Online Democracy!

On June 9, after the meeting of Lok Sabha Speaker Om Birla and Rajya Sabha Chairman Venkaiah Naidu, it was conveyed that virtual Parliament is ruled out for India, since amendments to rules of the Houses would be required. In this column, I disagree with the above assertion and argue that virtual parliaments are constitutionally permissible and we can locate the basis for summoning virtual sessions of Indian Parliament within the four corners of Article 85.

Additionally, a perusal of the rules for both Houses of Parliament would make it clear that no amendment is required to ensure that the Houses or the parliamentary committees meet virtually.

Article 85 of Indian Constitution says that

"The President shall from time to time summon each house Parliament to meet at such time and place as he thinks fit...."

The corresponding provision for state legislatures is provided under Article 174, which gives power to the Governor to summon sessions of state legislatures.

I argue that considering the nature of pandemic, we need to prudentially interpret the meaning of the word ‘place’ to include physical as well as virtual place. On the meaning of the word ‘place’, the Constituent Assembly debates shed little light, as most of the discussion was around the latter part of Article 85(1) regarding minimum time lapse between two sessions of Parliament.

Interestingly, the Article has been borrowed from the Government of India Act, 1935 where under Section 19, the Governor-General had the power to summon Parliament at a place and time he deemed fit. The nature of language used and the constitutional borrowing of Section 19 of the Government of India Act has opened a window for holding our representative responsible.

A perusal of judgments pertaining to Article 69 would help understand that there has been no attention given until now to the interpretation of the word ‘place’ by the judiciary. On the statutory side, a remote recognition to the virtual idea of a place is found under Information Technology Act, 2000, where under Section 2(w), the definition of the term ‘intermediary’ employs the word ‘online-market places’.

Black’s Law Dictionary begins the definition of ‘place’ by stating that ‘this word is a very indefinite term’ and goes on to mention that ‘it is applied to any locality, limited by boundaries, how- ever large or however small. It may be used to designate a country, state, county, town, or a very small portion of a town. The extent of the locality designated by it must generally be determined by the connection in which it is used’.

Therefore, considering the unprecedented nature of the situation at hand, in order to strengthen democracy, which is a basic feature of our Constitution, I would consider this a strong case for the President (on advice of the Cabinet) to summon Parliament virtually.

On the question of requirement of amendment of parliamentary rules, it is submitted that Rule 3 of the Rules of Procedure and Conduct of Business in Lok Sabha (Lok Sabha Rules) and Rule 3 of the corresponding Rajya Sabha Rules both enable the Secretary-General to issue summons to each member specifying the date and place for a session of the House. As far as meetings of Parliamentary Committees are concerned, while generally, they should be held within the ‘precincts of the House’, a perusal of the definition of the phrase informs us that it includes the "Chamber, the Lobbies, the Galleries and such other places as the Speaker (Chairman in case of Rajya Sabha) may from time to time specify".

Additionally, the Lok Sabha Rules under Rule 267 and the Rajya Sabha Rules under Rule 81 enable the Speaker and Chairman respectively to allow the Committees to meet outside the precincts of the respective houses. Therefore, it is humbly submitted that there are no limitations as far as rules are concerned.

Therefore, my limited agenda through this column is to provide a prudential interpretation of the word ‘place’ in order to answer the call of the times. On multiple occasions in the past, Governors have exercised this power and legislatures have sat outside state capitals in the past. For example, the Karnataka State legislature had its sessions in Belagavi, and the Maharashtra legislature met in Nagpur instead of Mumbai. I submit that it is time we recognise the need for desperate measures and take democracy to a virtual level.

The author is an Assistant Professor of Law in Bengaluru.

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