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In his recent farewell speech, Justice Deepak Gupta lamented the fact that many poorly drafted petitions seeking relief in the domain of pure policy making have been filed in the Supreme Court during the COVID-19 crisis.
While maintaining that “there is no alternative to a fearless and independent judiciary” in a country like India which “professes to be a follower of rule of law and separation of powers”, he cautioned the Bar and the Bench to understand the “limitations” of an institution.
The sagacious observations of Justice Gupta, though made to the stakeholders of the judicial system, equally apply to all the organs of the government. While the aforesaid conundrum surrounding the lakshman rekha of judicial activism vis-à-vis executive policy making has rightly received the required public attention, the relationship between the two other organs of the government - the Executive and the Legislature - does not generate as much scrutiny and debate.
Constitution envisages a responsible form of government
Our Constitution framers rejected Montesquieu’s theory of separation of powers in the rigid sense and provided for close connection, co-operation and dependence between the Executive and the Legislature. Although the Executive is not strictly separate from the Legislature, it is definitely accountable for its actions to the Legislature, which represents the will of the people.
One branch of the government cannot assume and encroach upon the functions that essentially belong to the other. The distribution of powers between the Executive and the Legislature was based on a functional and pragmatic approach with checks and balances.
Dr. BR Ambedkar, while introducing the Draft Constitution to the Constituent Assembly, compared the different models of government and explained the primary purpose of preferring the Parliamentary system over the Presidential form of government. He emphasized,
"Under the non-Parliamentary system, such as the one that exists in the U.S.A., the assessment of the responsibility of the Executive is periodic. It takes place once in two years. It is done by the Electorate. In England, where the Parliamentary system prevails, the assessment of responsibility of the Executive is both daily and periodic. The daily assessment is done by members of Parliament, through questions, Resolutions, No-confidence motions, Adjournment motions and Debates on Addresses. Periodic assessment is done by the Electorate at the time of the election which may take place every five years or earlier.
The Daily assessment of responsibility which is not available under the American system it is felt far more effective than the periodic assessment and far more necessary in a country like India. The Draft Constitution in recommending the Parliamentary system of Executive has preferred more responsibility to more stability.”
Decline in the role of Parliament
It is ironical that even as the functions and the role of the State has increasingly become more all-encompassing and complex, the role of Parliament has diminished over time all over the world, including in India.
The primary reason for the decline is attributed to the ability of the Executive to push legislative agendas at will. There is a tendency to avoid parliamentary oversight on crucial issues and restrict the Legislature to its formal role without substantive engagement on issues. Such an attitude is apparent from the wide use of ordinance-making powers and lack of political will to convene Parliament for longer periods than what is absolute necessary.
However, some blame lies at the door of the Legislature itself. The populist measures of political parties to treat Parliament as forum to score political points and the frequent resort to obstructionism has also dominated parliamentary proceedings and indirectly aided the government in avoiding scrutiny. The individual will of a Member has also increasingly become aligned to the party stand and whip, which discourages critical analysis and free flow of knowledge in the best parliamentary traditions.
Also, with the increasingly complex and technical nature of law-making, the average parliamentarian often lacks expertise and rigour on the subject-matter compared to the bureaucratic machinery and thus has no option but to defer to the views of the bureaucrats. As result of the aforesaid cumulative factors, Parliament has not satisfactorily discharged its constitutional duty of conducting the necessary assessment to make the Executive responsive.
Role of Parliamentary Committees as watchdogs
The bi-partisan Parliamentary Committees (deriving authority from Article 105 and Article 118 of the Constitution) are seen as a means to fill the gap for limited meetings of Parliament and provide necessary periodic assessment to rule-making, budgetary allocation and other matters related to governance.
Although the powers and functioning of Parliamentary Committees and panels constituted in India at present are far from ideal, and in need of serious reforms, they nevertheless play an important role in facilitating informed decision-making. The Committees draw upon the individual expertise of the law-makers, may function even when Parliament is not in session, and provide room for bipartisan free-wheeling deliberation and debate without fear of party whip.
The importance of such meetings was recently reiterated on March 1, 2020 by Vice-President and Chairman of the Rajya Sabha Venkaiah Naidu when he rued the fact that "95 members, accounting for 39 per cent of the total 244, did not attend any meeting on the Demands for Grants. Only 28 members had zero attendance last time".
He underscored the important role played by Committees in bringing “more accountability and transparency in the system so that Parliamentary functioning can improve.” He further made an appeal “to ensure better attendance in the meetings of Parliamentary Committees so that they do justice to the mandate with which they have been conceived. This warrants qualitative and quantitative improvement.”
Lockdown and issues surrounding virtual functioning of Parliamentary Committees
The Committees had stopped functioning on account of the lockdown. As the lockdown continued to be extended and social distancing became the new normal, many Members made a request to the Lok Sabha and the Rajya Sabha Secretariats to hold meetings of the committees by virtual means via video conferencing. However, this was refused on the ground that such meetings involve sharing of critical information, which could violate the confidentiality clause.
The invocation of the confidentiality clause to refuse meetings was seen as a ruse to avoid Executive accountability, especially when other branches of the government were extensively using video conferencing. The statement attributed to the Rajya Sabha Chairman that “there was need for undivided focus of the Executive on containing COVID-19 and a view on holding meetings of the Department Related Standing Committees and other Committees of the House would be taken later” also dented the credibility of the institution.
However, following a growing demand from various members and chairpersons of many Parliamentary Committees to not delay the meetings any further, it is now reported that the Rajya Sabha Chairman and the Lok Sabha Speaker have directed the Secretary Generals of both the Houses to explore the feasibility of holding “virtual” meetings of the Committees. It is still unknown as to how much time it will take for the Parliamentary Standing Committees to meet virtually.
It does no good to Indian democracy that the Parliamentary Committees, and by extension, Parliament, may be perceived as dispensable during the COVID-19 crisis, which has affected all sectors. Any assumption that the Committee meetings will dilute the ‘undivided focus’ of the Executive may imply that it is permissible for the Executive to run roughshod over the Parliament during emergencies and that the Executive is not responsible to the Parliament.
In fact, the sitting of a Committee does not cause any actual discomfort to the political Executive. It is only the government officials who depose before the Committees and not Ministers, who are exempt from such deposition, thus avoiding direct accountability. This is unlike what happens in the United Kingdom and many other parliamentary democracies. In fact, the rules governing the functioning of Parliamentary Committees in the United Kingdom and the USA also permit video recording of the meetings.
The respective secretariats of the Houses must ensure that the same digitally secure platform used for government functioning may be used for Committee meetings. Thus, there is no absolutely no reason to delay the convening of the Committee meetings.
Institutional reforms: Granting power to Parliament to convene itself
This entire episode also underlines the importance of structural parliamentary reforms to allow greater oversight of the Executive by Parliament. One important step could be to address the larger issue of self-regulation and summoning of the Parliament and the Committees by generating an extensive debate and consultation in this regard.
It is significant that under Article 85 the Constitution, the government has the sole power through the President (acting as per the advice of the Council of Ministers) to summon a House of the Parliament. This allows it to push its agenda to escape legislative scrutiny and incentivize minimum legislative oversight.
In order to strengthen the functional vibrancy of Parliament, the institution must be given the power to convene itself more easily and frequently. Thus, it will be appropriate to amend the Constitution to grant the power of convening a House of Parliament to a minimum number of Members whose request to the Speaker Chairman to convene the House should be made binding. This will allow legislators to express their views on issues of urgency and concern.
This in turn may trigger other chain reactions and functional benefits, and will likely achieve the larger objective of having a more responsible Executive. The Committees may also be allowed to convene themselves, just like Parliament, for greater autonomy. This will resolve the present tussle conveniently.
The author is an Advocate-on-Record at the Supreme Court of India and practices at the courts in Delhi. He may be contacted at firstname.lastname@example.org. Views are personal.