Introduction
The Parliament, in India and elsewhere, is an institution tasked with making laws. However, one must exercise caution in then associating productivity of the institution with primarily the number of sittings it conducts and the laws it passes. As with several other things in life, quality should ideally trump quantity. For Parliament, this means that the bills passed, each one of them, should be intensely debated and scrutinized in accordance with the mandated procedure. In any case, making laws is only one of the three core functions of Parliaments, as identified by the Global Parliamentary Report 2017)– the others being holding the executive to account and representing the constituents.
Unfortunately, in the recent past, the Parliament has fallen woefully short of reaching its true potential in terms of productivity. The Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Bill, 2020 and the Farmers’ (Empowerment and Protection) Agreement of Price Assurance and Farm Services Bill, 2020 (collectively referred to as the “Farm Bills”) were passed in the Rajya Sabha by a voice vote on 20th September 2020 (which was a Sunday), despiteprotest from the Opposition, and the audio telecast of the proceedings of the House reportedly being muted at this point. Scant regard was paid to the Rules of Procedure and Conduct of Business in the Council of States (hereinafter referred to as the “Rajya Sabha Rules”); scanter regard was paid to the avowed principles which underline our parliamentary democracy.
Multiple petitions against the Farm Bills are currently pending in the Supreme Court, with one challenging the Parliament’s competence to legislate on the subject of agriculture. Against this backdrop, it is worth commenting on what harm the manner of passage of the Farm Bills has unleashed on parliamentary democracy in India. Even if we were to concede that the Farm Bills are the most cogently drafted and well-intentioned reforms in the agricultural sector, nothing justifies the hasty and non-deliberative manner in which the Bills were passed. I argue that the passage of the Farm Bills sets an ominous precedent for law-making in India – one which is bereft of any scrutiny and which offers no recourse when parliamentary procedure is subverted. If the Parliament, and people who form the core of the institution do not reflect on what transpired in the Rajya Sabha on 20th September 2020, there is a significant risk of the institution losing its respect and sanctity in the eyes of the electorate.
Rajya Sabha Rules and the Specifics of Voting
In February this year, the Rajya Sabha Rules got their brief moment of fame when the Rules Review Committee of the Rajya Sabha put up a report recommending changes to certain rules to the General Purposes Committee. While we wait for this report to become accessible publicly, the rules themselves sought closer attention when the Farm Bills were debated in the Rajya Sabha.
Brought into force on 1st July 1964, the Rajya Sabha Rules are meant to regulate the procedure and conduct of business of the Upper House. The provision for voice vote, which is the most preferred means of decision-making in Parliament, is under Rule 252. This rule states that on the conclusion of a debate, the Chairman of the Rajya Sabha shall put the question before the Members of the House and invite those in favour to say “Aye” and those opposed to it to say “No”. The Rules, enumerated upon in the Handbook on the Rules for the Members of the Rajya Sabha categorically state that if the opinion of the Chairman as to the decision of a question by voice vote is challenged, members have the right to ask for the vote of each one of them to be recorded. The recording of votes is done through a procedure called “division”, and practically, can happen by either an automatic vote recorder or by members going into lobbies based on which way they want to vote. Division of votes forms a key component of the working of the parliamentary system. It provides insights into the individual position of Members of Parliament (MPs) on a particular issue besides also testing the strength (in terms of numbers) of the ruling party.
As is now well-known, the Farm Bills were put to a voice vote by the Deputy Chairman of the Rajya Sabha. Despite demands by opposition MPs for a detailed discussion on the Bills, and eventually, a division of votes on the two Bills, the government insisted that the voice vote go through. It has been reported that commotion ensued with some opposition MPs moving into the well of the House vehemently demanding a division of votes. Eventually, the Farm Bills were passed by a voice vote without an extended discussion or a division of votes.
In essence, the passage of the Farm Bills runs contrary to Rules 252-254 of the Rajya Sabha Rules. These Rules have been framed by the Rajya Sabha in exercise of the power vested in each House of Parliament, under Article 118(1) of the Constitution, to frame rules for regulating their procedure and conduct of their business. Judicial review of “irregularity of procedure” is prohibited under Article 122(1). Non-compliance with the procedural rules for conducting the business of the House cannot be a ground for interference by the courts. Eventually, it is for Houses to themselves ensure that their procedures, as laid down in their respective rules, are followed. This especially calls for a more intense scrutiny of the role of the Deputy Chairman in the case of the Farm Bills.
Essentially, the commotion caused by opposition MPs in the House became the ostensible cause for passing the Farm Bills without carrying out a division of votes. Can commotion in the well of the House be used as a narrow escape from established parliamentary procedure and necessitate hasty passage of bills in the Parliament? The ideal recourse during the proceedings on the Farm Bills, according to Rule 257 of the Rajya Sabha Rules, would have been the adjournment or suspension of the sitting of the Rajya Sabha owing to the grave disorder that had arisen. The fact that adjournment of proceedings was not resorted to becomes all the more intriguing because past experience demonstrates that disruption of any kind on the floor of the House(s) has been characterised by low productivity of Parliament and non-passage of legislation, of which the Goods and Services Tax legislation is a prime example!
A Gentle Reminder about Parliamentary Democracy
The unpleasantness that ensued upon the presentation of the Farm Bills in the Rajya Sabha did not end with the voice vote. 12 opposition parties moved a no-confidence motion against the Deputy Chairman for alleged violation of “all canons of law, precedence, parliamentary practice and fair play.” In response, the Rajya Sabha Chairman rejected the said no-confidence motion, and suspended eight Members from different parties over unruly behaviour in the House.
It seems almost ironic that the avowed objective of adopting a parliamentary form of government for India was to ensure accountability of the Government. In a motion regarding the Draft Constitution, Dr. B.R. Ambedkar advocated a parliamentary system of government (over a presidential system) because it offered more responsibility, even if not as much stability. In the parliamentary system, the government is periodically assessed by the electorate when elections are conducted, while daily assessment is at the behest of MPs through questions, resolutions, no-confidence motions, adjournment motions and debates on addresses. This is also how the judiciary has understood the working of our parliamentary democracy in practice. In Kihoto Hollohan v. Zachilhu [1992 Supp (2) SCC 651], the Court lucidly spelt out that “Parliamentary democracy envisages that matters involving implementation of policies of the Government should be discussed by the elected representatives of the people. Debate, discussion and persuasion are, therefore, the means and essence of the democratic process….” (per M.N. Venkatachalaiah J.)
To close the loop on the need for debate and discussion, it is crucial to point out the role of opposition parties in law-making. In that regard, Justices K.S. Hegde and A.K. Mukherjea observed in Kesavananda Bharati v. State of Kerala [(1973) 4 SCC 225], that “Our Constitution does not provide for one party rule where there is no room for opposition. Opposition parties have an important role to play under our Constitution. Members belonging to the opposition parties have as much right to participate in making laws as the members belonging to the ruling party….”
India’s parliamentary system has long rued the absence of an effective opposition, one which raises the right questions to hold the incumbent government accountable. The Farm Bills will carry the dubious distinction of being products of a parliamentary sitting where the opposition parties attempted a discussion, but could not have one. Giving opposition parties the opportunity to engage in debate is as significant as condemning unparliamentary behaviour displayed by any MP. With demands for referring them to a Select Committee of the House also being shot down, the passage of the Farm Bills compels even the firmest of believers in Parliament to think whether the institution has become redundant in practice.
What Does Parliament Stand to Lose?
It is rather perplexing that a single day’s proceedings in the Rajya Sabha violated the Rules, the founding principles of the Constitution, and judicial exposition on parliamentary democracy. Viewed alongside the suspension of Question Hour in the Monsoon Session, the passage of the Farm Bills points to a deeper malaise of dispensing with the need for asking questions. The institution of Parliament has been characterized with disruptions, tactics employed for subversion of parliamentary procedure, and more recently, hindrances caused to physical sittings by the COVID-19 pandemic (which tore right into the Budget Session). The reputation of Parliament has also declined over the last two decades, one of the reasons for which is the diminishing quality of deliberations.
The Global Parliamentary Report 2017 significantly points out that to develop a constructive oversight culture, Parliaments must foster a collaborative environment for effective functioning of committees and caucuses, and constantly carry out reforms to its rules of procedure. It makes immense practical as well as principled sense to take a deeper look into enforcement of the established rules for conduct of business in Parliament. Authorities chairing the Houses of Parliament are vested with considerable responsibility – to ensure not only smooth but productive and engaging proceedings within the House. It is rather ironic, if not laughable, that in case of the Farm Bills, the response to unruly behaviour was passing the Bills without due deliberation. Ideally, this must elicit deep introspection by the Parliament of the several recurring issues which have had an adverse impact on the quality of debate. The time is as good as any to take a holistic view of the much-needed reforms in the conduct of parliamentary proceedings – this will have a bearing on how well the Parliament performs its function of holding the government accountable for its actions. One can only hope that parliamentary procedure is reformed in a manner which keeps up with contemporary needs, realities and politics.
This post has been authored by Ms. Ritwika Sharma, Senior Resident Fellow and Lead, Charkha, Vidhi’s Constitutional Law Centre. She is also Co-Director of the Samvidhaan Fellowship. She was provided research assistance by Ms. Chahat Gautam, a student of RGNUL, Punjab. This blog is a part of the RSRR Excerpts from Experts Blog Series, initiated to bring forth discussion by experts on contemporary legal issues.