We must either acknowledge the faultline and strive towards getting the Constitution amended to establish a system of government which truly embodies the consent of the governed and the will of the people, or remain oblivious to the fact that legislators do not and cannot represent the will of the people.

 

[This article by Rahul Machaiah was first published on OpenDemocracy.net]

Democracy is a form of government understood to revolve around the consent of the governed. In a parliamentary democracy, this principle is enshrined by enabling citizens to elect legislators, who then go on to appoint the executive, consisting of a council of ministers headed by the Prime Minister or Chief Minister. This system essentially requires the executive to be accountable to the legislature which is presumed to reflect the will of the people.

While the framers of the Constitution in their wisdom felt that the parliamentary democracy model was the one best suited to India, I believe that on close examination the current system does not embody the consent of the governed even when this is calculated with a significantly low threshold.

When a political party enjoys a brute majority, the first casualty is the accountability of the executive to the legislature.

This is because the opposition and other political parties have no way of keeping the executive in check by preventing the passing of bills, etc. The ‘anti -defection law’ in the Tenth Schedule of the Constitution has reduced legislators to mere numbers as they are bound by the whip issued by the party. In other words, a legislator is forced to toe the line of his or her party’s leadership even though he or she holds a different opinion.

Voting against the wishes of the party puts him or her at risk of disqualification. This raises an important question: Is the legislator accountable to the electorate and obligated to represent their views or is the legislator just a party minion? Political parties have increasingly emerged as extra-constitutional authorities dictating terms to constitutional functionaries such as legislators.

Governance, the implementation of policies and infrastructure development in one’s locality or constituency, have considerable significance for citizens. While this may seem appropriate in the context of the separation of powers, it is ironic that legislators who supposedly reflect the will of the people lack authority with regard to the issues which matter most to the citizens. At best, legislators may use the Local Area Development Funds( Rs 2 crore in case of MLAs and Rs 5 crore in case of MPs, per annum), lobby with the government, or raise issues in the Parliament or Legislature. In reality, decisions pertaining to these issues are left to the discretion of the government, and legislators (especially those who do not belong to the ruling party or are independent) are helpless.

People are hence hesitant to vote for independent candidates despite the better credentials they often enjoy. The current Lok Sabha has only three independent members. There are also instances of legislators of the ruling party wielding unauthorised powers by interfering in the functions of the executive, such as transfers and the appointment of public servants, the awarding of infrastructure development contracts, etc. Either way, the functioning does not facilitate good governance and transparency.

The role of legislator

This leads us to the question: what exactly is the role of a legislator? While the Constitution suggests that it is primarily law making and keeping the executive under check by raising questions and issues, as stated earlier, the legislators have been reduced to mere ciphers. And with regard to questions raised in the Parliament or legislature, it has to be borne in mind that this is not very effective as assurances given to legislators by ministers are seldom met.

For instance, ABP News reported in 2017 that the Central Government had met only 30 per cent of the assurances it had given in the Indian Parliament. This only reflects the fact that the executive is hardly accountable to the legislature and when coupled with legislators lacking tangible power, the notions of the consent of the governed and the will of the people are a farce.

Private member’s bills are an important feature of our parliamentary democracy and it is unfortunate that only 15 such bills have been passed in the history of the Parliament. Reports prepared by PRS Legislative Research suggest that most of the bills are not even discussed in the Parliament. This further diminishes the identity and role of a legislator.

The assessment of the performance of a legislator is tricky for citizens as well as organizations which seek to enlighten citizens, due to the lack of autonomy and authority vested in them with regard to issues which concern the citizens of their constituencies.

In contrast, the citizens of a country like the United States of America are in a position to assess the performance of the legislators by analysing his or her voting pattern on issues which concern the citizens, not necessarily adopting the party’s stance.

Unfortunately in India, assessment of the performance of legislators is confined to parameters such as infrastructure development in the constituency and the quality of civic amenities, while being oblivious to the fact that these are the functions of government and local self-governing units, and not of a legislator.

Presidential system

Despite being a parliamentary democracy, the current trend suggests that we are functioning along the lines of a presidential system, in which people vote, bearing in mind who they want as the Prime Minister or Chief Minister. This will inevitably lead to a concentration of power in the prime minister/ chief minister and a few other ministers.

Things get further complicated in a quasi-federal country like ours when voting in state elections is influenced by factors such as which party the Prime Minister belongs to rather than factors such as quality of the candidates and the credentials of aspirants for the Chief Minister’s position.

The safeguards meant for a parliamentary democracy will not prove effective against this trend. We must either acknowledge the faultline and strive towards getting the Constitution amended to establish a system of government which truly embodies the consent of the governed and the will of the people, or remain oblivious to the fact that legislators do not and cannot represent the will of the people.

 

This article was first published on OpenDemocracy.net on 19 Sep. 2018

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