Can We Reverse The Decline?

                                                                                                                             *M. R. Madhavan

Parliament is one of the key institutions of governance in India. It makes laws, oversees the functioning of the government, sanctions and monitors government spending, and represents the interests, hopes and aspirations of all citizens.

There are clear indicators of decline in the performance of the Indian Parliament over the last few decades. Two indicators tell the story clearly (see Charts 1 and 2). First, the number of days that Parliament sits every year has declined sharply1 . In the first three Parliaments (1952 to 1967), Lok Sabha sat for an average of 122 days per year. This figure fell to an average of 72 days since 2000. Second, even on days that Parliament meets, a significant amount of time is lost as MPs disrupt the proceedings to draw attention to various issues. In the last Lok Sabha (2009-2014), about a third of the scheduled time was lost to disruptions. The net effect of these two trends is that the total time that Parliament meets has dropped sharply.

Chart 1. The number of sittings per year has declined steadily

Chart 2. A significant amount of scheduled time is lost to disruptions

The reduction in time available for business in the House has, arguably, led to a decline in the quality of parliamentary work. The number of Bills passed by Parliament has declined over the years (Chart 3). This may not necessarily be a bad outcome - one may argue that the newly independent country was creating an appropriate legal code in the first couple of decades, and that we do not need many new laws. However, one cannot dispute the need for Parliament to carefully scrutinize all Bills before they are passed. During the 15th Lok Sabha, about a sixth of all Bills were passed within five minutes, and just a fifth saw discussion over three hours (Chart 4).

Chart 3. There is a decline in the number of Bills passed per year

Chart 4. About a fourth of all Bills were passed with little debate

Two other indicators also show the deterioration in the quality of work. Each House of Parliament has a Question Hour each day, in which ministers respond to questions asked by MPs. Though the questions are known in advance, MPs can ask supplementary questions. This mechanism is designed to hold ministers to account for their policies and actions. In the five-year period of the last Lok Sabha, 61% of the Question Hour was lost to disruptions. Consequently, only 15% of the listed questions were orally answered. The other indicator is the time that Parliament spends in discussing the government's budget proposals. The Constitution requires all taxes and all expenditure to be approved by Parliament (Lok Sabha, since these will be money Bills). Chart 5 shows that there has been a steep drop in the time that Lok Sabha spent discussing the budget. This has resulted in a large part of the union budget being passed without the demands being discussed in the House (Chart 6).

Chart 5. Lok Sabha has spent less time on discussing the budget in recent years

Chart 6. About 10-20% of the budget is discussed by Lok Sabha (all amounts in Rs Crore)

Source: Compiled from Union Budget documents and "Bulletin-I" of Lok Sabha.

These indicators show that there is ample scope to improve the overall functioning of Parliament. In the remaining part of this article, we discuss various steps that can be taken towards this goal.

The Anti-Defection Law and Recording of Votes

In 1985, Articles 102 and 191 (disqualification of MPs and MLAs), of the Constitution were amended and the Tenth Schedule was added. This amendment (also known as the anti-defection law) detailed the process and the conditions under which an MP or an MLA would be disqualified from their position if they switched parties. Importantly, they would also be disqualified or if they voted (or were absent during a vote) in the legislature in a manner contrary to the direction given by the party. In other words, every MP has to vote in accordance with the party whip, failing which they would lose their seat in Parliament.

The anti-defection law was brought in to counter the "evil of political defections". It builds in a false assumption that all members of a political party agree on all policy issues. Typically, political parties are coalitions of people with broadly similar points of view, but there is significant difference in their positions on many issues. For example, it is not uncommon to see legislators in the US or the UK vote across party lines on many contentious issues. The anti-defection law removes the possibility of people within a party having a disagreement on any issue.

The anti-defection law has adversely affected the functioning of Parliament due to the following reasons. The role of an MP is to critically examine legislative proposals and policy decisions, and take a decision whether they are in overall national interest. [Of course, such decision will be determined by the MP's ideology, impact on their constituents, and many other factors but the important point is that they make the decisions after weighing the consequences of the policy or legislation.] The anti-defection law takes away this decision making power from the MP and places it with the party leadership. This mean that the MP will have to vote according to the party's diktat even when such direction goes against their beliefs, or against the interests of their constituents. If an MP has no decision making power (as this has been surrendered to the party bosses), what incentive would they have to research and understand the nuances of a Bill and weigh the consequences of its proposals? And lack of such an incentive would weaken the quality of debate on any issue.

This also removes a key check on the government. During the last 30-years of coalition government, the leader of the ruling party had to convince his coalition partners (leaders of other parties) to issue directions to their members to support a Bill or a motion. This process built in a minor check as at least a few party leaders had to be convinced before getting a majority support. In a situation where one party has a simple majority, the party leader can issue a whip and get majority support on any issue. The Parliament becomes simply a debating chamber with little real power. Of course, MPs can risk their membership and oppose the directive but they are unlikely to do this except in rare circumstances when they feel very strongly about an issue.

This law also weakens the accountability of MPs to the voters from their constituencies. MPs are expected to explain their voting decisions to their electorate, and this accountability mechanism works through the election process. That is, the MPs who cannot give account of their actions may find it difficult to get re-elected. One sees this mechanism working in the US elections, as former Senators are quizzed on their voting patterns. However, the anti-defection law breaks this process as MPs can just say that they voted in accordance with the directions given by the party leadership.

The irony is that the anti-defection law seems to fail when the stability of the government is in doubt. The last occasion of a no-confidence motion was in 2008 (following the nuclear deal with the US), when 21 MPs defied the party whip2 . It has also not worked when the party leadership decides to move out of a coalition, as the DMK and Trinamool Congress did in the last couple of years of the 15th Lok Sabha (when UPA-2 was in power). The anti-defection law should be repealed. After all, it is not present in any mature democracy in a form that an MP is disqualified for defying the party whip. Parties can take action by suspending or expelling the MP from the party membership but should not have the power to cancel the membership to Parliament. After all, that membership was obtained through an election process. A slightly weaker proposal would be to restrict this law to votes that determine the stability of the government, i.e., no-confidence motions and Money Bills in Lok Sabha. A private member's Bill introduced in 2010 by Mr Manish Tewari in Lok Sabha had this formulation, but the Bill lapsed when the MP was appointed as a minister.

A related issue is the near-absence of recorded votes. Most Bills and motions are passed by a voice vote. Only if the voice vote is challenged, is a division (recorded vote) called. Therefore, in most cases, we do not have any record of how an MP voted, or even whether he or she was

present in the House at the time of the vote. The only exception is in cases of Constitutional Amendments which need the support of two-thirds of the members present and half the total membership.

During the five years of the 15th Lok Sabha (2009-2014), votes were recorded only on 19 Bills of the 179 that were passed. The previous Lok Sabha was even worse, with divisions in eight out of 248 Bills.

To press the point, recorded voting gives information to citizens on the behaviour of their representatives. For example, when the Criminal Laws (Amendment) Bill was passed in 2013, amending rape laws (following the Nirbhaya incident and the Justice Verma Committee report), some of the clauses were put to division. The Lok Sabha proceedings show that 203 MPs were present in the House at that time. Hence, citizens can ask the other MPs the reason for their absence during such important debates.

One way forward is to require that the final vote on every Bill be recorded. This is easy to implement given that there is an electronic voting system in both Houses. Indeed, the British Parliament routinely records all votes despite the cumbersome process of the members having to walk out to the lobbies and being manually counted.

Any small group of MPs can also get this implemented. The Rules of Procedure of Lok Sabha and Rajya Sabha require a division if any MP challenges the Speaker's decision on the voice vote. If a group of MPs decide to use this challenge for the final vote of every Bill, the objective of having a record can be achieved.

Convening of Parliament and Determining the Agenda.

The Constitution states that the Parliament sessions are held when called for by the President, and also that the President acts on the aid and advice of the council of ministers. Therefore, the Cabinet headed by the Prime Minister decides when the Parliament will be convened. The dates of the session are also decided by this process, and there have been occasions when the session has been closed ahead of the originally announced date at the request of the government4 . This leads to an interesting conundrum. A key role of the Parliament is to hold the government to account, and the government can decide when Parliament will meet. Unless the government needs a Bill to be passed, it can defer a parliamentary session, thus weakening the accountability role of the Parliament.

An extreme example of the use of this power was seen in 2008. The Rules of Lok Sabha state that a motion (or a similar one) cannot be taken up more than once during a session. Parliament was called for a two-day session in July with the only business being a no-confidence vote, after some parties supporting the minority coalition government indicated withdrawal of their support. The government won the trust vote, but the sessions held during October, and November-December (usually, the Winter Session) were all termed a continuation of the two-day session and called the Monsoon Session. This prevented a second no-confidence motion that year. A related issue is the manner in which the daily business list of the House is determined. Each House has an all-party Business Advisory Committee which sets the daily agenda. This committee makes its decisions by consensus. The agenda not only includes which issues are to be taken up but also the types of debates (such as whether there would be a vote or not at the end of the debate). There may be occasions when the government may wish to avoid a voting motion, such as when a coalition partner has an opposing interest and will have to show its hand. There may be other occasions when the government does not want a debate to take place on an issue. Given that the agenda is determined by consensus, the government can prevent a debate on an embarrassing issue. Even if the Rules were to be changed to require such decision by a vote, the government would have the majority support in Lok Sabha and it can prevail over other parties. This process also makes the oversight role of the Parliament weaker.

There are at least two ways to address these issues. One, the calendar for the full year can be announced in advance, with any changes being made only in extreme circumstances. This will reduce the discretion of the government in tactically managing the schedule. It will have the added benefit of enabling MPs to better plan their schedule given their multiple roles in the Parliament, in the constituencies, and often being members of various delegations and statutory bodies.

A second possibility is to require that a Parliament session be convened if a significant minority of members give a written petition to the President. [This will require a Constitutional Amendment, but a convention can be built if the government agrees to the principle]. This number has to be set below the 50% mark as the government always has majority support in Lok Sabha. For example, a noconfidence motion has to be taken up if 50 Members (about 10% of the strength) demand it, and a motion to impeach a judge is initiated after a written notice by 100 Lok Sabha or 50 Rajya Sabha members (about 20% of the strength). An interesting aside is that, the joint proposal of the Indian National Congress and the Muslim League in 1916 for the Imperial Legislative Council within the British Empire included a provision for calling a special session if one-eighth of the members asked for it.

Indeed, a similar rule can be made for the daily business agenda. Jay Panda, who is an MP, has suggested that an issue should be taken up if one third of the members desire it6 . The British Parliament follows a different process. It allows the agenda to be set by the Leader of the Opposition for 20 days every year (they meet for about 150 days, about double that of the Indian Parliament) .

In sum, a set of reforms on the manner in which Parliament session dates are determined and the daily agenda decided could change the power balance between the legislature and the executive. This will enable the legislature to perform better in its constitutional role of being a watchdog over the government.

The Question Hour

The first hour in Lok Sabha (and the second in Rajya Sabha) is called the Question Hour, in which MPs ask questions to ministers. Each day of the week is earmarked for specific ministries and departments; questions have to be submitted ten days in advance, which the minister answers; supplementary questions can then be asked. Through this process, ministers are held accountable for the policies and performance of their ministries.

One important issue is that the time allocated for Question Hour is often lost to disruptions. Whereas, the Parliament may sit late to complete other business, there is no such facility for the Question Hour. For example, during the last Lok Sabha, 61% of the time of Question Hour was not utilized as members disrupted proceedings and the House was adjourned. Having Parliament meet for more days every year and reducing disruptions would be a way forward to enable more questions to be answered.

A second issue relates to topics that cut across ministries. As ministers respond to topics under their respective ministries, there may be issues that slip through the gaps. The British Parliament has instituted a Prime Minister's Question Time during which the Prime Minister responds to all questions. Perhaps, a similar procedure could improve the oversight of Parliament over the government.

Legislation

Parliament makes all laws on topics that fall under the Union List of the Seventh Schedule of the Constitution, and may also make laws on the topics falling in the Concurrent List. The process of legislation is as follows. If a Bill is being introduced by the government, the relevant minister introduces the Bill. Other MPs who are not ministers may also introduce Bills, which are called private member’s Bills. If the motion to introduce the Bill is passed (the first reading), the Bill may be referred to a Committee for examination. Following the Committee's report (if the Bill was referred to one), it is taken up for detailed discussion and clause-by-clause voting. At this stage, amendments to the Bill may be considered (second reading). Then the Bill as amended is taken up for the final vote (third reading). After the Bill is passed, it is sent to the other House, which will take up the second and third readings. Then the Bill is sent to the President for his assent, after it is becomes an Act. Several Acts allow the government or regulatory bodies to notify rules and regulations (delegated or subordinate legislation).

There can be several reforms in the way this process works. Firstly, private member’s Bills are rarely enacted into law. There have been only 14 such instances, and the last one was in 1970. Therefore, private member’s Bills have merely become signaling devices for MPs to indicate their support for an issue. In 2015, a private member’s Bill (on rights of transgenders) introduced by Tiruchi Siva was passed in Rajya Sabha, and this Bill was debated over several days in Lok Sabha.

However, the debate on this Bill was deferred after the government introduced a Bill on the same topic in the Monsoon Session of 2016. In contrast, the British Parliament has passed 112 private member's Bills since 2001-02, an average of eight per year8 . The Indian Parliament could also start giving more importance to Bills sponsored by private members, a step towards making them true "legislators".

The second reform could be in the form of a greater scrutiny of the Bill, right from the pre-legislative stage to the post-legislative stage. In the pre-legislative stage, parliamentary Committees could examine draft Bills even before they are formally introduced through the first reading. Parliamentary committees may scrutinize the draft Bill, take evidence from experts and stakeholders, and recommend changes before the Bill is introduced. This process is followed for some (not all) Bills by the British Parliament. After the Bill is introduced, the decision to refer it to a committee is taken by the Speaker in consultation with the concerned minister. During the 15th Lok Sabha, 71% of the Bills were referred to committees; this has dropped to 31% in the first two years of the current Parliament. It would be useful to make the committee examination a mandatory part of the process of passing a Bill, as in the British Parliament. After the Bill is passed, the subordinate legislation is examined by a committee established for that purpose. This committee does not examine all subordinate legislation but only the ones that its officers judge to meet some conditions such as exceeding the permitted level of delegation, being contrary to the parent Act or imposition of a tax. In the two years of the 16th Lok Sabha, this committee has submitted nine reports, and two action taken reports. Currently, the committee has a total staff of 11 persons, all of whom are generalists 9 . Given the important task of filtering all subordinate legislation (a few thousand every year) that these officers perform, increasing the staff strength and adding persons with specialist and legislative skills will enhance its effectiveness.

Committees

A significant portion of the Parliament's work is conducted through its committees. Parliament has constituted 24 departmental related standing committees which have members from both Houses. These committees examine Bills, scrutinize the working of various departments or specific subjects under them, and evaluate the demand for grants related to the ministries and departments falling under their purview. During the 15th Lok Sabha, 24 committees submitted a total of 1024 reports, which consisted of 145 on Bills, 159 on subjects, 285 on demand for grants, and 423 action taken reports. There are three financial committees: the Public Accounts Committee and the Committee on Public Undertakings, which examine the reports of the Comptroller and Auditor General on government departments and public undertakings respectively; and the Estimates Committee which sees whether government spending is being done with greater economy and effectiveness.

None of these committees have subject specialists on their staff. Recruiting specialized staff and regularly consulting external experts will enhance the ability of the committee to examine various issues. Second, ministers do not appear before the committee. Only civil servants do. Therefore, the committee cannot impose accountability on the political executive. Third, the committee hearings are held in closed rooms unlike the proceedings of Parliament which are televised live (and reported by the media, with full transcripts being published). One could argue that closed room discussions help MPs discuss issues freely and makes it easier to build consensus. However, MPs are public representatives and their actions in this role should be easily visible to the electorate. At the very least, the proceedings should be published.

Conclusion

The decline in the functioning of the Indian Parliament over the last few decades needs to be reversed. This article outlines several steps that can be taken towards achieving this objective. These include some which are relatively difficult to implement as they require the Constitution to be amended (such as the repeal of the anti-defection law, and requiring Parliament to be convened on the demand of a significant majority), some that require the Rules of Procedure to be amended (such as reporting of committee proceedings, referring all Bills to committees), and some that can be done if a few members decide to champion the cause (such as asking for recorded vote for every Bill or voting motion).

There is another aspect that needs attention. There is little public understanding of the role of MPs, and how it differs from that of a local representative such as a municipal councillor or a panchayat member. Citizens often approach MPs with local level problems such as potholes and streetlights, which fall under the purview of the local representative. Not only do the MPs have no power to resolve these issues, they are distracted from their main role of national level law making and overseeing the central government. Creating public awareness about the respective roles of various representatives will help in better targeting various issues of governance.

* M. R. Madhavan heads PRS Legislative Research, New Delhi, and is grateful for detailed discussions on this topic with various colleagues, including Chakshu Roy and Mandira Kala. Kusum Malik helped with collating the data.