Structure and Functioning of Parliament

Why Rajya Sabha?

• Federal Chamber: Rajya Sabha consists of elected representatives from state legislatures. It is conceived as a chamber to check that legislations passed by the Lok Sabha are in accordance with federal nature of administration in the country and in consonance with interest of various states
• Check hasty or ill-conceived laws: As the house of elders and of domain experts nominated persons, Rajya Sabha also checks hasty or ill-conceived laws passed by Lok Sabha
• Representation to Domain Experts: The President can nominate 12 persons who are eminent personalities in various domains to be members of Rajya Sabha. Hence the house facilitates expertise without the necessity of a direct election.

Role of President

• Check on passed legislation: President is the final authority of check before a bill becomes an act. He may withhold his assent or sent back a bill which he feels is not in the best interest of the country on behalf of the executive
• Dissolving the Lok Sabha: President may dissolve the Lok Sabha in lieu of advice tendered by Prime Minister or when no-confidence motion is passed in Lok Sabha. Thus he enforces the accountability of the government to the House of People.

Possible Question

Drawbacks of the Move

• Arbitrary Use: The doing away of the domicile requirement would reduce the utility of having state-wise representation. It leaves the door open for arbitrary misuse for political motives
• Dilutes the Federal Mandate of Rajya Sabha: Domiciles would have best upheld the federal mandate of the Rajya Sabha through an equitable representation of states
• Lack of Accountability: The individual states interests at the national level would have been best represented by domiciles of that state. However, the lack of the same leads to a vacuum of accountability on the assembly that elects representatives
• Not Aware of Ground Realities: A person who is not domicile in a state may not be knowledgeable on the priorities of the state to defend them in the Council of States.

Why it is legitimate?

• Wider Talent Pool for Political Parties: The doing away of domicile requirement opens up opportunities for several candidates who may be more worthy and suited for parliamentary roles as compared to ones within the state
• Better Integration: The representation of one state by a non-domicile can facilitate emotional integration of the country and kindle the bond of oneness traversing across regional lines
• States’ Interests: Even candidates who are not residents of a state may be aware of interests and aspirations of the state and worthy enough to protect the same in the Council of States.

Composition of Lok Sabha

Composition of Rajya Sabha

Delegated Legislation: Parliament makes law in skeleton form and authorises executive to make detailed laws. It is also referred to as executive legislation or subordinate legislation.

Financial Powers

Budget in Parliament

Stages in Enactment

1. Presentation of Budget: Discussed in Lok Sabha, Rajya Sabha can discuss it, but not vote on a demand for grants
2. General Discussion: Takes place in both houses and lasts 3 to 4 days
3. Scrutiny of Departmental Committees: Examine in detail demands for grants of concerned ministries and prepare report cards
4. Voting on demand for grants: Exclusive privilege of Lok Sabha as money appropriated is to implement schemes of incumbent government that is the mandate of people vested with directly elected representatives of Lok Sabha. Cut motions (Policy, Token, Economy) are moved during this stage. Hence the parliaments control over executive’s actions are visible in this stage where its check actions ensure there is greater responsibility and accountability on the government to expedite spending in judicious manner.
5. Passing of Appropriation Bill: All money required to meet grants voted by Lok Sabha and expenditure charged on CFI
6. Passing of Finance Bill: To give effect to financial proposals of government for coming year. It legalises income side and completes the process of enactment of the budget.

Scrutiny of Spending

1. Budgetary Control: During passing of budget, parliament has to vote on demand for grants where it can move cut motions to cut government spending if it feels it is unwarranted or unjustified.
2. Post-Budgetary Control: After the government has spent, the various committees verify the efficacy or judicious nature of spending

Executive Power

Amending Constitution

Limited Power

Limitations on Parliamentary Sovereignty

• Fundamental Rights: The amendment of a parliament is subject to non-contravention of fundamental rights elucidated in Part III as referenced by Article 13. In the Keshav Anand Bharthi Case, the court opined that the parliament may take away the fundamental rights as long as the basic structure of the constitution.
• Judicial Review: The power of judicial review evolved from Article 13 enables the judiciary to observe the constitutional amendments. If it is violative of the basic structure of the constitution, the court may strike down such an amendment
  • The Supreme Court struck down the NJAC bill as it was averse to the basic feature “independence of judiciary”
  • Striking down of the part of 42^nd amendment that inactivated judicial review on constitutional amendments
• Federal Framework: The parliament’s power to amend is limited by the consent of states in all matters where federal features are involved. It needs to take in half the state legislatures consent for such amendments.
  • The passing of the GST bill as the 101^st constitutional amendment required the ratification of state legislatures
• The supremacy of the Constitution: Any amendment to the constitution if it threatens to subvert the supremacy of the constitution shall be declared null and void by the court on the basis of unconstitutional
  • The striking down of the 39^th amendment that circumvented the court’s jurisdiction on election related matters of the Prime Minister, President, Vice President and Speaker was struck down in Indira Gandhi vs Raj Narain Case (1975) as unconstitutional

Electoral Powers

Judicial Powers

Issues in Functioning of the Parliament

Ineffectiveness of Parliamentary Control

• Executive Leadership: Executive members hold majority in the parliament. Greater this majority, lesser is the scope for effective criticism.
• Lack of Technical Expertise: Members of parliament are not technically adept to evaluate, form opinions and vote on financial matters such as demand for grants
• Less number of sittings: Parliament has 3 sessions in a year and the number of sittings and MPs attending these sittings have been less which affects the functioning of parliament as a deliberative body. The executive holds the prerogative for proroguing the Parliament by recommending the same to the President.
• Dissolution of Lok Sabha: The Prime Minister can recommend to the President to dissolve the lower house and call for fresh elections
• Growth of Delegated Legislation: Armed executive with parliament’s law making powers
• Ordinance Promulgation: Frequent ordinance promulgation has diluted parliament’s law making powers with executive taking this route many a times to circumvent normal legislative process and authority of parliament
• Lack of Strong Opposition to question, put pressure and evaluate effectiveness of government policies and decisions
• Anti-Defection Laws: Members of parliament are forced to align with their party’s views on all issues raised in the parliament due to the anti-defection law which shall disqualify them in cases otherwise. This scuttles the scope for meaningful debate, deliberation and criticism of government in the parliament as legislators have no freedom to exercise individual judgement
• Growing Absentees in Parliament
• Ordinary Bills as Money Bills
• Partisan Role of Speaker in allocating time, decision on money bill and facilitating discussions

Conduct of Business of the Parliament

1. First Reading: No discussion, published in gazette
2. Second Reading: Parliamentary scrutiny where the house may refer it to a committee or circulate it to general public. Committee conducts detailed examination of the bill plugging loopholes and modifying the bill without altering underlying principles. The House then votes upon the bill clause by clause
3. Third Reading: Acceptance or Rejection of bill as a whole; no amendments allowed
4. Pass, pass with amendments, Reject or take no action

Provision for Joint Sitting

1. First house passed the bill, second house rejects it
2. First house passed the bill, second house passes back with amendments that are rejected by the first house
3. First house passes the bill; second house takes no action for 6 months

Why Joint Sitting?

• Resolution of Deadlock: It provides an innovative mechanism to resolve differences between different chambers by bringing them together on a common platform. It allows amendments only on clauses where conflict has arisen or in cases where scenarios have changed that necessitate the same.

• Favouring Lok Sabha: Owing to its numerical superiority, generally the will of Lok Sabha is manifested in the Joint sitting. Hence more preference is provided to realise people’s mandate. The speaker of Lok Sabha herself presides over Lok Sabha

Cases where Joint sitting not allowed

Low Productivity of Parliament

Why Low Productivity?

• Partisan Politics: The deliberative discussions in parliament have largely centred around political motives and partisan opinions that have hindered true intellectual discourse to take place within its walls
• Poor Quality of Members: The members of the parliament of today in comparison to the parliament of the 1950s are much lower in quality of human resource, knowledge and skill
• Constant Disruptions: TV and media coverage have provided further incentive to grandstand on issues. Between 2012 and 2016, 30% of Lok Sabha time and 35% of Rajya Sabha time was taken away due to disruptions [Association of Democratic Reforms]
• Poor Compliance to Parliament Ethics: Indian parliament has become infamous in the recent past owing to unruly behaviour of its members seen rushing to the well, shouting and causing damage to parliament physical infrastructure
• Ineffective control of presiding officers
• Inequitable Time Devolved to Members: Parliament’s function as a check on the executive has reduced owing to the lack of time for deliberations and discussions given to its members.
  • Budget 2017 was put to vote without any discussion or deliberation
• Poor Attendance: Attendance levels in the parliament have left much to be desired from the members. The absence of members nullifies the possibility of a discussion in the true democratic spirit of the nation
• Anti-Defection Law: The anti-defection has compounded the partisan spirit in the Parliament diffusing diverse opinions and inducing conformity to fractured legislations
• Less Sittings: The executive has misused the power of proroguing parliamentary sessions. Constant adjournments have further compounded the issue
• Frequent Adjournments reducing the time for productive debates and discussion on legislation

• Legislative Compromise: Hastily passed bills and budgets compromise on efficacy, financial prudence and propriety of decisions taken
• Accountability Erosion: A poorly productive parliament threatens to erode the control of the legislature on executive. This may lead to executive tyranny and despotism through the dictatorship of the cabinet undermining separation of powers
• Loss of money:
  • Poor Allocation: Improper functioning of parliament compromises the financial prudence in allocation of scarce resources
  • Wastage of Expenses: The winter session 2017 of parliament entailed losses to the tune of 5 crore
• Loss of Faith: Low attendances, constant disruptions and ruckus in the parliament reduces faith and credibility of parliament as an institution in minds of the people
• Judicial Activism: An unproductive parliament may force the judiciary to extent its activity into the law making area to safeguard welfare of citizens. This may undermine separation of powers and lead to individual bias in decisions
• Antithetical to Federalism: The poor functioning of Council of States debilitates federal framework of legislation in the country.

• Better Enforcement of Parliamentary Rules and Ethics: The presiding officers of the house of the parliament shall be empowered to strictly enforce parliament conduct and rules with violating members suspended or heavily punished for their unruly behaviour
• Minimum Mandatory Attendance: A minimum percentage of attendance shall be made mandatory for those holding seats in the parliament
• Equal Time Devolution: The presiding officers shall be impartial in ensuring that all parties have sufficient time to bring their opinion to the forefront and ensure the democratic spirit of the discussion is not broken
• Setting Time aside for Opposition: India can emulate Britain and Canada in setting aside more than 20 days for the opposition to raise their issues. This can also provide opportunities for smaller political parties to play an important role in setting agenda
• Parliamentary Budget Office: India needs a parliamentary budget office to assist in technical matters of handling the budget akin to the U.S Congressional Budget Office. It can conduct an independent and impartial objective analysis of any bill.
• Cooperative Functioning: The government needs to take greater responsibility to ensure smooth functioning of parliament. At the same time, opposition should use parliament responsibly for constructive criticism. All party conferences can help foster parliamentary spirit.
• Workshops for MPs: Members of the parliament shall be trained to overcome the poor quality of discussions and conduct rules enforced
• Dilute power of executive in proroguing parliament: Calendar of sittings can be announced at the outset of a year.

Anti-Defection

Why Anti-defection law?

1. Mandate of People
2. Reduces the role of money
3. Cultivates party loyalty and party discipline
4. Stability of government in Parliamentary Democracy

• Freedom of Speech: The mandatory directive of the party and anti-defection threat reduces thinking lawmakers to mere numbers for passing bills. In the Kihotto Holohan judgement, the Supreme court held anti-defection law to be within the basic structure of the constitution
• Role of Speaker: The speaker’s discretion in deciding on disqualifications of defecting members has been controversial. Questions have been raised on the partisan decisions
• Loopholes in law
  • The exception of 2/3^rd party members defecting is anti-thetical to the very concept of anti-defection
  • A nominated member is provided with 6 months as time frame for joining political party without inviting defections. This provision can be manipulated to manufacture majorities diluting will of people
• Quality of Debates: The non-democratic nature of the defection law is bound to reduce quality of debates with increasing polarization on the floor of the house narrowing the confines of debate
• Reduces accountability to people and parliament

• Rationalize Jurisdiction:
  • Dinesh Goswami Committee: Limit anti-defection to
    • Members voluntarily giving up party membership
    • Member votes or abstains contradictory to party direction during no-confidence motion
  • Change Deciding Authority
    • Election Commission: Issue of disqualification should be decided by President/ Governor
  • Remove Loopholes: Law commission has opined that exemptions for splits and mergers should be deleted. Pre-poll fronts should be considered as political parties
  • Foster Deterrence: The Constitution Review Commission has opined that defectors should be barred from holding public office or remunerative political cost

Parliament –Privileges and Issues Arising out of these

• Court is prohibited from enquiring into proceedings of house or its committees
• Parliament can define its own rules and regulations for conduct of business and adjudication of such matters
• Can hold secret sittings excluding strangers from its proceedings

• Right to receive information regarding arrest, imprisonment, conviction and release of a member
• No person can be arrested and no legal process can be served within the precincts of the house without permission of presiding officer

• Article 105 provides the houses of parliament with right to publish its own reports, debates and other proceedings and the right to prohibit others from publishing the same
• Punish members as well as others for breach of privilege
• Institute enquiries and order attendance of witness and acquire relevant papers and records

Individual privileges

Contempt of the House

1. Constitution of India: Article 105 provides for privilege of freedom of speech and right to publication of proceedings
2. Various laws made by Parliament
3. Rules of Both Houses
4. Parliamentary Conventions
5. Judicial Interpretation

Issues with Privileges

• Maximize privileges: The un-codified privileges leave an ambiguity which enables houses of parliament to maximize capability of freedom of speech and other privileges which help it to function as an effective and efficient institution. It reduces obstruction to parliamentary proceedings and ensures houses retain their authority, dignity and honour
• Separation of Powers: Leaving the privileges un-codified limits judicial interference and scrutiny as to matters and proceedings within the houses of parliament enhancing its independence from other organs of the state
• Self-Regulating: The parliament has defined its own rules, procedures and regulations regarding proceedings and conduct of business in the houses that are elaborate enough to provide a check on usage of privileges. Hence a separate exhaustive list of privileges may not be deemed necessary

• Regulating Conduct of Business: Presiding officers have to ensure that rules of conduct of business are religiously followed by members of parliament. He may submit a report regarding the same to the president. Any members acting in contravention may be made liable to punishment, suspension from the house.
• Codification: Parliament can exhaustively augment and codify existing privileges from all sources for increased clarity that is better for healthy functioning of democracy and for harmonious balance between organs of the state

Parliamentary Committees

Potential of Parliamentary Committees

1. Specialization: Each parliamentary committee is specialized in a particular domain. This enables members to develop expertise and holistically analyse issues at their forefront
2. Accountability: They provide scrutiny and constructive criticism to government policy. The Public Accounts Committee by an ex-post facto analysis ensures the government remains accountable for spending tax payers money
3. Knowledge Reservoir: Parliamentary committees contain volumes of information that MPs can constructively use during discussions on policy and law making.
4. Legislative Assistance: Many Ad-hoc parliamentary committees resolve issues on bills.
   1. Prevention of Corruption amendment bill passing through various committees in Rajya Sabha has seen several issues get addressed
5. Engagement with Stakeholders: The committees can engage with civil society and expertise to gain feedback on important issues
6. Financial Propriety: The Estimates Committee ensures financial prudence in allocation of government resources. Thus committees check on economy of expenditure and ensure each penny of the tax payer is put to productive use
7. Smooth Transaction of Business: The Administrative committees of the parliament provide for smooth conduct of affairs, allocation of time and setting agendas in the parliament

Issues in Functioning of Parliamentary Committees

1. Fewer Bills Referred: Only 27% of bills in 16^th Lok Sabha have been referred. In contrast, 71% were referred during the 15^th Lok Sabha
2. Poor Attendance of members in committees
3. Short tenures in committees leaves little time for specialization
4. Little discussion: The recommendatory nature of committee reports has diluted their mandate of accountability
5. Lack of technical expertise to delve into intricate matters of law
6. Politicization of proceedings of committee
7. The ex-post facto nature of many of the committees including the PAC disables them from achieving financial prudence

1. Refer more bills
2. Make attendance mandatory and link it to membership of committee
3. Extend tenures and provide workshops for capacity building of law makers in parliamentary committees. Develop domain expertise for members of committees
4. Executive Interaction: Minister- committee interactions can help achieve better convergence with committee recommendations. This can also serve as an extra instrument of accountability
5. Standing Committee on Economy can be created

1. Lack of time allotted: The multi-party democracy and coalition era has widened the spectrum of views and opinions. Speakers have been accused of partisanship in allocating time to parliamentarians from various parties
2. Abuse of discretions
   1. Deciding on Money Bill: The discretion of final say on whether a bill is money bill has often been abused by speakers. This threatens the federal framework of legislation as it then circumvents the Council of States
   2. Issue of Defection: 16 MLAs in Arunachal Pradesh were disqualified by speaker despite not leaving party or disobeying its directives
3. Constant Adjournments: Frequent disruptions in parliament have necessitated quick adjournments. This has reduced productivity, increased hastily passed bills and led to erosion of accountability on the executive
4. Ineffective control over house proceedings: Speakers have been unable to enforce parliamentary codes of conduct.

1. Curb Discretions: The discretionary role of speaker related to defections and splits may be placed with Election Commission or any neutral body outside legislature
2. A convention of once a speaker always a speaker should be developed. This can curb partisan tendencies
3. Speakers can resign from party membership as in U.K
4. Time allocation: India can emulate U.K and Canada in allocating set time for opposition and opportunities for regional parties to set agenda of the day.

State Legislature

Composition of the Assembly

Legislative Council vs Legislative Assembly

• Ordinary Bills: Legislative council acts merely as a check mechanism and can at the maximum delay the passage of an ordinary bill by 4 months, it is hence merely a dilatory chamber. A bill originating in the council once rejected by assembly becomes dead.
• Money Bill: Legislative council can only pass recommendations to a money bill within 14 days of its passage from lower house. The assembly may or may not accept recommendations of legislative council. A money bill cannot be introduced in the council
• Creation or Abolition of the council: The very existence of legislative council remains on will of assembly as it can pass a resolution calling for its abolition in the event of which the parliament would initiate proceedings for the same
• Budget: The legislative council can discuss only on demand for grants, they have no power to vote for the same
• Election of President: The members of legislative council do not take part in electoral process of president

Why the Legislative Council

• Check mechanism: A second chamber at state level acts as an advisory body which passes recommendations regarding bills to the assembly. It can hence help in avoiding hastily passed, ill-thought and ill-conceived bills from state legislative assembly
• Domain Expertise: The council provides for domain expertise for eminent personalities from various fields of science, art, music, literature and social service.

Arguments against Legislative Council

State legislature vs Parliament