Though several bills were passed in the first two sessions, there was very little detailed debate and the government routinely used ordinances to bypass parliament.
Parliament started the year on a promising note but saw a complete collapse by the year-end. The first session – the budget session – was functional. Lok Sabha worked for 121% of its scheduled time while Rajya Sabha worked for 91%; the corresponding numbers for the monsoon session were 101% and 96%, and for the winter session 15% and 18%. This translated into the amount of productive work done. In addition to discussing and passing the budget, 17 bills were passed in the budget session, 14 in the monsoon session and just two in the winter session.
These numbers hide a few structural weaknesses. Several bills were passed with very little debate, including many that were introduced and passed within the same session. For example, of the eight bills that were introduced in the budget session, six were passed in at least one house in the same session. The figures for the monsoon session were seven out of 14. Of the two bills that were passed in the winter session, one was introduced and passed the next day. That said, there were a few detailed debates on bills such as the Aadhaar Bill which was discussed for over seven hours and the amendment to the constitution to enable the goods and services tax which saw debates for 20 hours across the two houses.
Over the last few years, a worrying trend is emerging. Fewer bills are being referred to parliamentary committees. In 1993, standing committees of parliaments were formed to enable more detailed examination of proposed legislation and working of departments. The convention is that bills are referred to these committees which then obtain feedback from experts and affected persons, and give their recommendations. During 2016, just six out of 31 bills that were introduced (19%) were referred to committees. During the period of the current Lok Sabha, 31% of all bills have been referred to committees. Contrast this with the figures of 71% in the last Lok Sabha (2009-2014) and 60% in the 14th Lok Sabha (2004-2009).
Even among bills referred to committees, on a few occasions, the standing committee was bypassed and a joint committee of the two houses was created. This was done for the bankruptcy code Bill as well as the Bill that amended a few acts including the SARFAESI Act. The reason was not given, though one can see that the standing committee was chaired by an opposition member while the joint committee had a member from the treasury benches as the chairperson.
The use of ordinances to bypass parliament was used liberally. This year, ten ordinances were issued, including one – the Enemy Property Ordinance, that was issued five times. Ordinances are laws made by the government when parliament is not in session and need to be ratified within six weeks of the commencement of the next session. The idea is that there may be emergent circumstances that require an immediate law, which cannot wait till the next meeting of parliament. However, in most democracies, such a process does not exist and an urgent need of a law is met by calling a session of parliament on short notice. The Supreme Court has ruled that this is a temporary measure and ordinances should not be re-issued if the legislature fails to ratify them. This principle was not just violated but a session of parliament was prorogued (or closed) during the recess in order to enable the issuance of an ordinance. This was a clear departure from the principle that it is the sole prerogative of the legislature to make laws.
Some important bills were passed during the year. These included the bankruptcy code Bill and the Bill to amend SARFAESI Act, the real estate regulation Bill, the benami transactions prohibition Bill, the compensatory afforestation Bill, the Aadhaar Bill, the rights of persons with disabilities Bill and the constitutional amendment to enable goods and services tax. The last one is arguably the most significant taxation reform in decades and will need a set of money bills to be passed over the next few months for its implementation.
The manner in which the Aadhaar Bill was passed was contentious. This Bill was passed as a money Bill, which implied that Lok Sabha could override the amendments made by Rajya Sabha. The constitution defines a money bill as one that has provisions exclusively related to taxation or government expenditure or borrowings. It gives the speaker of Lok Sabha the final authority to certify a bill as a money bill. Given that the Aadhaar Bill had provisions in addition to those related to government spending, one may argue that it does not fit the narrow definition of a money bill. This issue has been taken to the Supreme Court which is considering the case.
During the two sessions that it worked well, parliament also discussed several important issues. These included debates on inflation, atrocities against Dalits and the situation in Kashmir. It is interesting to see that some issues are discussed frequently. Since 2004, internal security has been discussed 50 times, inflation 34 times and various natural disasters 32 times.
Parliament this year will be known for not discussing one of the most important events that affected almost every resident of India – the demonetisation of Rs 1000 and Rs 500 notes, and the aftermath. While Rajya Sabha started discussing this on the first day (and discussed it for a total of six and a half hours) and Lok Sabha made several attempts (adding up to an hour and a half), neither house saw a reply from the government or a conclusion to the debate. This issue too now shifts to the courts, with the Supreme Court forming a constitution bench to determine the legality of the move.
In sum, the year saw parliament sliding further in its position vis-à-vis the executive and the judiciary in its core law-making role. The government used the ordinance route repeatedly to enact laws. The Aadhaar Bill was passed as a money bill, which meant that the only the house (Lok Sabha) in which the government always has a majority had a say. The judiciary also passed orders – such as the one imposing a cess on diesel cars and the national anthem case – which are legislative in nature. Debates such as the legality of passing the Aadhaar Bill as a money bill and the various measures related to demonetisation have been passed onto the courts.
It is important for parliament to wrest back its space as the key representative institution that makes laws and holds the executive to account. For this, it has to gain moral ground through reasoned discussions. A few structural changes are needed to enable these and bring greater autonomy to members of parliament – such as repealing the anti-defection law, automatic rules for determining the topics for debate and whether there will be a vote, a regular calendar for parliament to meet and enabling structures such as a research support for members and committees. While it is unlikely that these measures will be taken in 2017, one hopes that a consensus builds towards these in the next few years.
M.R. Madhavan is the president of PRS Legislative Research, New Delhi.