The editorials of the week Jan-27

Voice vote as constitutional subterfuge

The Karnataka Prevention of Slaughter and Preservation of Cattle Bill was passed by the State’s Legislative Council on Monday, February 8. The Bill had already been passed by the Legislative Assembly where the State government enjoys a majority. But the prospect of the Bill passing the Upper House was doubtful as the Opposition parties — the Congress and the Janata Dal (S) — have a majority in the Council; and both were opposed to the Bill. But the law was passed by the Council despite the lack of a majority. Instead of having a division vote based on actual voting as is usual and as the Opposition members had demanded, the presiding officer just declared the Bill passed by voice vote without any division. The same happened in case if passing the three farm laws in parliament.

But the fact that the legislative process followed for these laws did away with actual voting in the Upper House has not been given the prominence it deserves. The government has repeatedly invoked the multiple consultations around these laws over the years to justify them, but the fact that the pieces of legislation were passed without an actual legislative majority voting for them does not seem pivotal. These two sets of laws passed with a voice vote seem like a new template for bypassing the constitutionally envisaged legislative process. Indeed, both were first passed as ordinances; such was the urgency felt for enacting them. And once they were tabled in the legislature, the governments insisted on the Bills not being referred to the legislative committees in either case, even though the Opposition repeatedly raised the demand.

The Money Bill ruse

The voice vote subterfuge supplements the other technique repeatedly deployed over the last few years to bypass the Upper House of Parliament — the Money Bill route, utilised increasingly in instances even where the laws concerned would not easily fit within that definition. Most notoriously, the Aadhaar Bill was passed in this manner. But other controversial laws such as those pertaining to electoral bonds, retrospective validation of foreign political contributions and the overhaul of the legal regime relating to tribunals have also been carried out through the Money Bill ruse. A majority of the Supreme Court in the Aadhaar case upheld such use, though the dissenting judge called such use of the Money Bill as nothing less than “a fraud on the constitution” . A later constitutional Bench of the Court has since noted the problem with the majority position and has referred the issue of interpreting the Money Bill provision to a larger Bench.

The Rajya Sabha’s role

The fact remains that even if all these laws were actually unquestionably desirable and necessary, the dubious mechanisms followed for their enactment would surely mean they are unjustifiable. That is precisely why the justification for such subterfuge to pass these laws is so revealing. The increasing use of the Money Bill route was defended by the then Leader of the Rajya Sabha when he deplored the repeated questioning by the indirectly elected Rajya Sabha of the wisdom of the directly elected Lok Sabha. Underlying this common sentiment is a tendency to devalue bicameralism itself. The Lok Sabha is seen as directly representing the will of the people, and the Rajya Sabha as standing in its way. And since democracy itself is seen purely in terms of parliamentary majority in the Lower House, the countervailing function of the Upper House is rarely seen as legitimate.

The Rajya Sabha has historically stopped the ruling party from carrying out even more significant legal changes. The notorious Emergency-era 42nd Constitutional Amendment could not be repealed in toto by the post-Emergency Janata regime because the Congress continued to have a strong presence in the Rajya Sabha. The Rajiv Gandhi government’s proposed 64th Constitutional Amendment Bill on Panchayati Raj was narrowly defeated in the Rajya Sabha, even though it enjoyed the highest ever majority in Lok Sabha. But neither of these governments resorted to constitutional subterfuge or attacked the Rajya Sabha’s raison d’être. Indeed, the Rajya Sabha is undoubtedly imperfect, partly because of constitutional design. And partly because obviously undesirable practices, such as members representing States they have no affiliation to, have been allowed to flourish. But forms of constitutional fraud that reduce it to a cipher cannot be condoned, and it is important to understand the crucial constitutional role that such a body plays.

The value of bicameralism

Legal philosopher Jeremy Waldron has explained the virtues of bicameralism, especially when the two Houses are chosen by different processes of representation and elected on a different schedule. The very questioning of the monopoly of the Lower House to represent the ‘people’ makes bicameralism desirable, he argues. In India, the fact that the Rajya Sabha membership is determined by elections to State Assemblies leads to a different principle of representation, often allowing different factors to prevail than those in the Lok Sabha elections. John Stuart Mill had warned in his classic treatise on representative democracy that “a majority in a single assembly, when it has assumed a permanent character—when composed of the same persons habitually acting together, and always assured of victory in their own House — easily becomes despotic and overweening, if released from the necessity of considering whether its acts will be concurred in by another constituted authority.” Now that judicial review is hardly practised in India, the second chamber’s performance of such a role becomes particularly important as it offers the opportunity for a second legislative scrutiny. The other merit of bicameralism for Waldron is especially significant in a Westminster system like India, where the Lower House is dominated by the executive. The Rajya Sabha holds the potential of a somewhat different legislative relation to the executive, making a robust separation of powers possible.

Taking legislature seriously

Arguably though, the malaise that allows such legislative humiliation to be tolerated in India runs even deeper, evident in the contempt for the legislature that has been shown by the executive in this country since the mid-1970s. Never though has it been more apparent than during the pandemic. While the British Prime Minister was being taken to task on ‘Prime Minister’s Questions’ every Wednesday in the House of Commons even during the pandemic, Parliament in India was not even convened until it became necessary, and that too after suspending Question Hour. The legislature’s role here is seen as only to pass legislation — the faster the better. But in a country where judicial procedure is perceived as an obstacle to justice by judges themselves, it should not surprise us that legislators view legislative procedure as dispensable so that laws can be enacted by hook or by crook.

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