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Whither Legislature amid the COVID-19 crisis?

Shridhar Prabhu

The President of India, under Article 85 of the Constitution, can summon, prorogue and dissolve each House of Parliament. In de facto terms, these three key functions – summoning, prorogation and dissolution - are discharged by the Ministry of Parliamentary Affairs (MPA) of the Union.

This is not just a convention, but is specifically stipulated in the Allocation of Business Rules framed under Article 77(3) of the Constitution. So, it is the Union Executive and not the Legislature that regulates Parliament.

As per the Constitution, fixation of place and time of sessions are the exclusive prerogative of the President or rather, the Union Executive.

A society is not even an artificial juridical person, but even then, its members can, by law, call for a General Body Meeting. Similar powers are statutorily vested with cooperative societies and companies. Academic Councils and Syndicates of Universities have such inherent powers to regulate their business.

Unlike all these, Members of our Parliament, the highest legislative body of the Union, have no powers to regulate their assembly or dissolution.

When Parliament is in session, its business is conducted by the Speaker. The Speaker is no doubt elected from out of the legislators, but the office of Speaker, with his own secretariat, is an institution independent of the Legislature. Thus, the Legislature, even when in session, in the strict sense, cannot regulate its own conduct of business.

With the passing of the Constitution (Ninety-First Amendment) Act, 2003, popularly known as the anti-defection law, that brought about crucial amendments to the Tenth Schedule of the Constitution, the independence of the Legislature was further impaired. Whatever may be the benevolent impacts of this law on the overall polity, it can hardly be disputed that the agency and independence of the legislators was greatly subdued as the whip of the political party reigned over legislator’s choice.

Many former Supreme Court and High Court judges have taken exception to the reluctance of the Apex Court in remedying the plight of migrant workers. However, none have perceived anything objectionable in not convening a special session of Parliament on COVID-19 or the plight of the workmen.

Opposition parties too have merely objected to the implementational defects of policy decisions, but have never questioned the propriety of choosing the ordinance route for channelizing vital legislation. Everyone seems to be rejoicing in attacking the Judiciary, but none seem to hold the political Executive responsible for not taking steps to convene Parliament.

A proposal of a Member of Parliament seeking early convening of the Monsoon session is being opposed on the ground that submission of two dozen parliamentary standing committee reports is a sine qua non for commencement of the Parliament. Nothing in law seems to support the position that submission of report must always precede a session. There is hardly anything stopping parliamentarians from convening e-meetings of the standing committees. In fact, it was reported that the Joint Committee on Salaries and Allowances of Members of Parliament met on a virtual platform and took the decision about slashing of the salaries and allowances of the Parliamentarians.

The Union Executive has done excessive legislative work in the past few months, as seven Ordinances have been promulgated in the year 2020, of which six came in during the COVID-19 lockdown period. Some of the Ordinances passed by states like Karnataka have express repugnancy to the Central Ordinance, but no Presidential assent has been obtained.

When laws need not be tested on the anvil of the legislative debates and deliberations, these anomalies are bound to happen. All these are minor irritants as compared to the larger issue of lack of agency or autonomy to the Union Legislature to commence and convene itself.

The Inter-Parliamentary Union (IPU), an association of the world parliaments repute has succinctly documented the COVID-19 responses of parliaments across the world. The work of standing committees of parliaments across the world that are not in session are documented and acknowledged. The parliamentary responses of Argentina, Australia, Austria, Azerbaijan, Brazil, Canada, France, Hungary, Ireland, Israel, Italy, Latvia, Malaysia, Malta, Mexico, Mongolia, New Zealand, Norway, Switzerland and United Kingdom are truly inspiring.

The United Kingdom has ensured exemplary interventions through its ancillary bodies appended to the parliamentary institution. The Committee on Women and Equalities commissioned an inquiry on COVID-19 and sought public responses and depositions on problems faced by women. The Joint Committee on Human Rights has initiated a detailed inquiry into the human rights implications of the UK government’s response to the crisis emanating from the pandemic. Such things are unheard of in our jurisdiction.

The author is an advocate practicing at the Karnataka High Court.

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