In the Lok Sabha, secure in its overwhelming majority, the Government simply chooses not to listen, or to listen with a closed mind. The idea of Parliament as a forum for collective deliberation and agreed outcomes has ceased to have any meaning.

 

This article was first published in Open The Magazine on 18 August 2017

By Shashi Tharoor

India’s Crisis of Representation

The diminished role of the parliamentarian

WITH THE MONSOON Session of Parliament behind us, one of the issues that understandably vexes many observers is the predictability of most parliamentary debates in the Lok Sabha.

The Government will propose. The opposition will oppose. If matters come to a head and a vote is called, the Government’s brute majority will dispose.

The merits of the issue will matter little. There will be no reasoned attempts to persuade the other side; or rather, when such attempts are made by the well-meaning, they will prove futile, since persuasion, reflection and exchange are not the purpose of the exercise. Increasingly, parliamentary debates have become a ritual, the obligatory airing of opposing views, until the whip is cracked and MPs duly vote on party lines.

Even sensible suggestions by the opposition—with which the treasury benches do not in fact disagree—are never adopted, since to do so would admit the possibility of flexibility into government legislation in the Lok Sabha. The only time that opposition views are taken into account is when the outcome of the vote would otherwise be uncertain—in the Upper House. And now even that is changing to assure the Government a majority in the Rajya Sabha as well.

But in the Lok Sabha, secure in its overwhelming majority, the Government simply chooses not to listen, or to listen with a closed mind. The idea of Parliament as a forum for collective deliberation and agreed outcomes has ceased to have any meaning.

I had a taste of this myself in last year’s Monsoon Session, on a routine and non-controversial bill on labour rights, which my party (having initiated the reform itself in the UPA days) had agreed to support. The bill merely required that employees in companies of a certain size had the right to be notified of their rights, in writing. During its passage, I suggested that, given that nearly a fifth of Indian men, and more than a third of Indian women, were illiterate, two words should be added: ‘orally and in writing’. My logic, as I explained to my fellow MPs, was that while the bill’s objectives were laudable—in giving labourers knowledge of their rights in writing, so they could be legally enforceable—the substance of those rights should also be conveyed orally, so that illiterate workers could understand what they were entitled to. This suggestion was entirely within the spirit of the bill.

I saw several BJP MPs nodding their heads affirmatively at this commonsense suggestion. But when the amendment was put to a voice-vote, the ruling party erupted raucously in a vociferous chorus of ‘No’. My proposal was negated. The whip was to vote in a certain way—common sense be damned.

This is a small example of how little real give-and-take there is in our parliamentary system, especially after the Anti-Defection law inaugurated a practice of party whips on all issues, making receptivity to the ideas of the other side punishable with expulsion from the House.

There was nothing about my idea that need have upset the ruling party, or that went against its ideological interests or the substantive purposes of the bill. But the debate that was scheduled on the bill was never intended to influence the terms of its adoption. The outcome was preordained: the bill would be passed without change.

What, one might ask, is the point of such debates at all, other than to nail one’s colours to the party mast? Why should a serious MP exercise his grey cells to come up with constructive suggestions, if they are never going to be considered, let alone adopted?

This was not how it was meant to be. Parliament, in the classic British conception, was supposed to be a forum where individual MPs of ability and integrity met to discuss common problems and agree upon solutions. Edmund Burke, in his famous speech to the Electors of Bristol on November 3rd, 1774, articulated brilliantly and clearly the logic of parliamentary representation. Burke was addressing the issue of MPs being asked to advocate the wishes of their constituents, rather than themselves, but his logic applies also to the issue of MPs parroting their party lines. He is worth quoting in his own words:

“It ought to be the happiness and glory of a representative to live in the strictest union, the closest correspondence, and the most unreserved communication with his constituents [or here, if you prefer, read ‘Party’]. Their wishes ought to have great weight with him; their opinion, high respect; their business, unremitted attention. It is his duty to sacrifice his repose, his pleasures, his satisfactions, to theirs; and above all, ever, and in all cases, to prefer their interest to his own. But his unbiased opinion, his mature judgment, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living. These he does not derive from your pleasure; no, nor from the law and the constitution. They are a trust from Providence, for the abuse of which he is deeply answerable. Your representative owes you, not his industry only, but his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion.”

Whereas in the early days a prime minister could even be challenged by MPs from his own party, today conformity rules the roost. So why give Parliament an importance its performance does not warrant?

In other words, an MP betrays himself and his voters if he surrenders his own better judgement to the dictates of either his constituents or his party leadership. As Burke explains, “government and legislation are matters of reason and judgment, and not of inclination; and what sort of reason is that, in which the determination precedes the discussion; in which one set of men deliberate, and another decide; and where those who form the conclusion are perhaps three hundred miles distant from those who hear the arguments?”

His final point is the clincher: “Parliament is not a congress of ambassadors from different and hostile interests; which interests each must maintain, as an agent and advocate, against other agents and advocates; but parliament is a deliberative assembly of one nation, with one interest, that of the whole; where, not local purposes, not local prejudices [one might add today, ‘not party lines’] ought to guide, but the general good, resulting from the general reason of the whole. You choose a member indeed; but when you have chosen him, he is not member of Bristol, but he is a member of parliament.”

This goes to the nub of the entire issue. What is our conception of what Prime Minister Modi has called “the temple of democracy”? Is it merely a place to ratify decisions made elsewhere in party cabals or cabinet meetings, whose adoption is rendered inevitable by the previous general election results? Or is it a chamber where the representatives of the Indian people assemble to express their considered opinions and thoughtful disagreements, before coming to an outcome in the interests not of a party but of the country as a whole?

The Anti-Defection law was passed with good intentions— the same good intentions with which, the proverb tells us, the road to hell is paved. It was intended to stop the aaya Ram-gaya Ram practice of legislators crossing the floor in pursuit of power and pelf, which saw state governments (and two Central Governments) between 1967 and 1985 rise and fall like skittles. The idea was noble, and rested on sound principles: governmental stability matters; people must stay loyal to the party on whose platform they contested; the intent of voters must not be betrayed by defections. When the law was first explained by its proponents, there was widespread support, even enthusiasm, for its passage.

But how has the Act worked in practice? It has dramatically reduced defections, but not eliminated them, as we have seen in Uttarakhand last year and Manipur this year, and as we are continuing to see in Gujarat and UP as I write. What it has done most effectively is to stifle the voice of the individual legislator. Since every single vote in Parliament sees a whip being issued, however trivial the subject of the bill, there is no room for honest differences of opinion. Disobeying a whip offers grounds not just for disciplinary action by the party, but expulsion from Parliament altogether. No MP who has struggled and strived (and spent) to get elected to his seat lightly places it in jeopardy. His convictions become secondary to the party line. The ‘argumentative Indian’ is often on display in both Houses, but only when he is arguing strictly according to his party’s position.

Edmund Burke, in his speech to the Electors of Bristol in 1774, addressed the issue of MPs being asked to advocate the wishes of their constituents, rather than themselves, but his logic applies also to the issue of MPs parroting their party lines

AS A RESULT, the anti-defection law has reduced each MP to a cipher during every vote, a number to be totted up by his party whip rather than an individual of ability, conviction and conscience. This outcome has other effects: it reduces the need for each MP to study an issue thoroughly and come to a position on it, since his position no longer matters unless he is part of the party leadership. In my experience, most MPs only study the bills they are assigned to speak on; the rest sees them dutifully voting as their whip tells them to.

This is, in many ways, a travesty of the parliamentary process. In the UK, where the system originated, no whip was issued even on so fundamental a vote as whether to authorise the Government to proceed with the Brexit negotiations. Earlier, no whip was issued on whether the UK should support the US in the Iraq war. Dissent was freely and honestly expressed on both sides of the aisle. Such freedom is unknown to the Indian MP after the passage of the Anti-Defection Law.

Ironically, the underlying logic of the Indian approach has been called into question by the Election Commission itself offering a ‘None of the Above’ (NOTA) option on the ballot for the recent vice presidential election. Every MP voting in that election was subject to a party whip; would not voting NOTA violate his whip? If a NOTA vote was cast, then, would it be grounds for disqualifying the voter from Parliament? If NOTA embodies a constitutional right, then isn’t punishment under the Anti- Defection Law for exercising that right itself unconstitutional?

At least in the vice presidential election, there was a secret ballot. Some cross-voting appears to have occurred. Votes in parliament, however, are out in the open. A dissenting vote is an act of defiance; under the Anti-Defection Law, it will automatically attract sanction.

Part of the problem is that the main provisions of the Constitution regarding the legislature were silent about the party system; the later addition of the anti-defection clause in the schedule in 1985 was patently illogical since it sought to punish the undermining of an institution which was itself not mentioned in the main provisions. Surely the schedule cannot override the main provisions of the Constitution? Did the founders ever intend the party system to be paramount over the individual parliamentarian, obliging him to subordinate his conscience to the party whip?

These are questions to which there are no real answers in today’s India. But the right ones, in the words of the latest Nobel Laureate for Literature, are “blowin’ in the win”. We just have to grasp them firmly and bring them indoors into Sansad Bhavan.

One such answer might be to amend the anti-defection law to ensure that party whips can only be issued for specific kinds of issues—those involving the survival of the Government, perhaps, and money bills. That would lead to more open discussion on other subjects, but it is doubtful that any MP would openly vote against his party line even on a minor issue. Even if such a vote no longer attracts disqualification, it would attract the disapproval of his party leadership, and that is disincentive enough for most parliamentarians.

One of the consequences of the crisis of representation I have diagnosed here is that Parliament itself has become less and less seminal an institution in our democracy.

Whereas in the early days a prime minister could even be challenged by MPs from his own party—think of Jawaharlal Nehru being attacked by Feroze Gandhi, Finance Minister TT Krishnamachari being forced to resign by his own backbenchers, or Mahadev Mishra challenging his Prime Minister’s China policy—today conformity rules the roost. So why give parliament an importance its performance does not warrant?

The result of this kind of thinking is apparent. The first three Lok Sabhas saw as many 140 sittings a year; we are now at about half that number, and it is reducing every year, since the BJP Government clearly has very little time for the distractions of Parliament. In the last Lok Sabha, 25 per cent of the bills were passed with scarcely any discussion at all, and only 2 per cent witnessed discussions of three hours or more (these figures are almost certainly lower in the current Lok Sabha). Barely 15 per cent of the Union budget is discussed in detail; our government is spending taxpayers’ money without the taxpayers’ representatives having a meaningful say in how it is spent (state assemblies are even worse: many sit for fewer than 30 days a year, and in Haryana the average is 12 days).

Once bills are passed in a hurry, they become Acts, and these are implemented through the promulgation of rules which are drafted by the Government and supposed to be placed on the table of each House. The rules really govern how the act works in practice, and in theory are subject to parliamentary scrutiny. Guess how many rules have been discussed in the current Lok Sabha? Precisely zero.

Such practices are destroying the role of the Indian parliamentarian as the legislator he was envisaged to be by our founding fathers in the Constitution. Our Prime Minister spoke of introducing ‘minimum government, maximum governance’. Instead, we are heading to a system of ‘minimum parliament, maximum government’.

The judiciary is eagerly stepping into the breach, taking initiatives that should have been Parliament’s to take—unelected judges substituting themselves for the people’s representatives. It’s nobody’s fault but our own, but it’s not the democracy Dr Ambedkar and his colleagues in the Constituent Assembly envisaged.

It is time to look afresh at our institutions and ask if they are really providing the solid foundations on which the edifice of our democratic freedoms must be built. The crisis assailing our legislative representation in Parliament makes this task imperative—and urgent.

[Shashi Tharoor is a Member of Parliament and author]

 

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