Parliament interrupted

It is indeed quixotic that the day Parliament functions it becomes breaking news rather than the other way round. For over three decades now India’s legislative institutions have been commandeered by the spectre of disruption, leading to their adjournment for weeks.

The question that needs to be asked is: Why don’t parliamentarians and legislators, some of whom spend crores to get elected to the Lok Sabha and even the Rajya Sabha, stand up to these disruptions and insist that these institutions be allowed to function After all, the reason for the redundancy of these bodies is the conduct of the very eminences that populate them.

The real malaise, however, is graver than mere decorous behaviour or lack of it. It lies in the 10th Schedule that has transformed members of Parliament from being representatives of their constituencies to mere deputies of their respective political parties.

The other malady, especially with the Rajya Sabha, is that what was conceived as the Council of States has ignored its original charter.

The federal chamber, where the interests of the states were supposed to be represented, has merely become a second hall of Parliament. Unfortunately, even the domicile provision of living in a particular state to get elected from that state has been squelched. It is high time that the judgment of the Supreme Court in Kuldip Nayar vs Union Of India & Ors, 2006, (Kuldeep Nayar had challenged the NDA government’s decision to do away with the requirement that you must live in a particular state to be elected to the Rajya Sabha from it) is revisited.

Another issue is that the Rajya Sabha has become a veritable club for employees of oligarchs and dodgy businesspersons who abuse their monetary clout to enter its hallowed portals and then use the suffix of being MPs to promote their corporate or personal agendas. Their contribution to either its proceedings or public life is usually zilch, if not in the negative.

Five years ago, vice-president Hamid Ansari, who is also the chairperson of the Rajya Sabha, speaking in the context of the 10th Schedule of the Constitution of India, lamented: “We need political consensus so that room for political and policy expression in Parliament for a member is expanded. A whip could be limited to bills that could threaten the survival of a government, such as money bills or no confidence motions”.

He was alluding to the rigours of the constitutional provisions that inadvertently restrict the freedom of expression of individual members to serve the higher ideal of political morality ordained, unfortunately, through a legislative fiat with attendant punitive provisions.

One of the first actions of the Rajiv Gandhi government was to introduce the Constitution (52nd Amendment) Bill, 1985, to add to the 10th Schedule to the Constitution. The Schedule’s mandate was to curb the growing tendency of political defections. The 10th Schedule disqualifies members of Parliament and state legislatures who change political parties, i.e. leave the political party on whose symbol they got elected and join another political party post their election or violate the directions of that political party while voting in the House.

The original 10th Schedule, however, did not take into account the ingenuity of immorality that bedeviled some of the worthies who adorn our legislatures. While it penalised individual acts of defection, it recognised the principle of split, whereby, if one-third of the members of a legislative party broke away and formed a separate group or joined another political party, they could continue as members of the legislature. In practice what happened was that the malaise of retail defections got converted into a wholesale malady.

The then National Democratic Alliance government, through the Constitution (91st Amendment) Act, 2003, omitted paragraph three from the 10th Schedule that allowed one-third of the parliamentarians/ legislators to split from their parent party. However, it left paragraph four in place, which allows two-thirds of the members of a parliamentary/legislative party to merge with an existing political party or form a new political party. Essentially, this constitutional amendment raised the wholesale defection bar from one-third to two-thirds.

The poser is, how to provide more freedom of expression to our parliamentarians and legislators while containing their materialistic tendencies and rank opportunism through legislative action.

But first, why is an expanded role for lawmakers in the realm of political and policy expression in Parliament essential Because, formulation of law in India remains an essentially non-transparent bureaucratic function completely exclusionist in character. To top it all, political parties routinely issue whips to members to vote one way or the other on a bill. The net result is that a member ends up voting for a bill if on the treasury benches and against a bill if in the Opposition, because positions are taken not on the merits of the provisions of a bill but upon the prevailing levels of bitterness or the power dynamic in the political system when a bill has to be enacted into law.

This has the effect of dis-incentivising lawmakers from seriously researching, thinking laterally or searching for best practices to incorporate into legislation.

If a member contemplates moving amendments to a proposed legislation, the mere thought of whip driven numbers defeating the amendment would be enough to put him/her off, even if s/he musters the courage.

Broadcasting the proceedings of Parliament have only added to the basest instincts of “us as a people” manifesting themselves in the crassest possible manner.

How then can the role of a member be expanded while ensuring that it does not affect the stability of the government One small amendment needs to be made to the 10th Schedule to fix this problem.

It maybe worth revisiting the provisions of a Private Member’s bill introduced by the writer on February 4, 2010, entitled “The Constitution (Amendment) Bill, 2010, (Amendment to the 10th schedule)” that lapsed on my induction into the Council of Ministers. The bill, among other things, inter alia stated: “That the provisions of Para 2(1)(b) (If an MP/MLA votes or abstains from voting contrary to any direction issued by his/her political party s/he shall be disqualified) would only apply to the violation of a direction given by a political party on a no-confidence motion or matters connected to the financial business of the government and would entail automatic disqualification of the member concerned.”

This small amendment will ensure that governments will have to walk that extra mile to build both a broad-based consensus on legislation first within their own ranks and then at a multi-partisan level. This would ensure a lateral proliferation of inputs on legislation, thereby making them more profound as members would be liberated from following the diktats of the party. It would arouse ministers out of their arrogance that the guarantee of a fiat is no longer available to drive bills through the parliamentary or legislative processes.

There is a need to re-empower MPs and MLAs so that they develop a stake in the proper functioning of these institutions. There is also a need to revisit the need for bicameral parliamentary and legislative chambers as the Rajya Sabha and the Vidhan Parishads have not been able to validate their raison d’etre.

Unless and until structural flaws that have become institutionalised in the parliamentary and legislative systems are rectified, the problem of disruptions and grandstanding will not abate.

The writer is a lawyer and a former Union minister. The views expressed are personal. Twitter handle @manishtewari\\