The Wire, November 28, 2017
The delay in convening the winter session is symptomatic of a deeper malaise – the attempt by the executive to subvert the independent function of the legislature and its secretariat.
Article 85 of the Indian constitution says that the gap between two sessions of parliament should not be six months – which means the next session should be called before the completion of six months. The opposition had voiced its fears that the government was going to skip the winter session. Now that the session’s opening has been set for December 15, that apprehension is set at rest for the time being. Nevertheless, the complaint remains that the winter session has been delayed by almost four weeks in view of elections to just one state assembly. This is unprecedented.
It is in fact the prerogative of the government to convene parliament on a particular date. The government is free to consider various aspects before deciding to call the session. Unlike the situation in the UK, the US and some other democratic countries – where parliament meets at a fixed time – the constitution makers of India thought there should be some flexibility in scheduling the meetings of the legislature. In fact, the original provision in the constitution was that there should be at least two sessions in a year. This was amended in 1951 to say parliament may be summoned from time to time. Thereafter, it always met thrice a year and that practice continues till today. Thus, three sessions of parliament in a year have become the pattern and any departure from it now will naturally be frowned upon. Then why would any government think of reducing the number of sessions unless it has a sinister plan of gradually reducing the importance of parliament with the ultimate object of dispensing with it altogether?
In political circles, the widespread belief is that the winter session of parliament has been delayed due to the election in Gujarat. The fact that the session begins on December 15 – the day after polling concludes – reinforces this belief. The argument that sessions were postponed during earlier Congress regimes is self-deceiving because the Bharatiya Janata Party seriously believes that everything the previous ruling party did was wrong. So any imitation of the Congress will not make it right. The simple conclusion one can arrive at in these circumstances is that in the eyes of the present government, the elections in Gujarat are a greater priority than a session of parliament. Then, on a point of fact: the duration of a session or two was cut short in the past because of elections to a large number of assemblies and that too after arriving at a consensus. No session was ever postponed for as long as four weeks for a single assembly election.
Parliament not getting the priority it deserves at the hands of the executive is indeed a serious matter. The executive is collectively responsible to the legislature. The collective responsibility of the executive is the essence of responsible government. The Supreme Court has emphasised this point when it said, “The cabinet is responsible to the legislature for every action taken in any of the ministries. This is the essence of joint responsibilities.”
The primacy of the legislature over the executive is an essential aspect of the constitutional democracy we have in our country. But the trend that has emerged over a period of time is of the executive progressively strengthening its control over the legislature.
At first blush, this may appear paradoxical. After all, the legislature sanctions money for running the government. The executive cannot withdraw a paisa from the consolidated fund without the authority of law made by the legislature. The executive cannot levy or collect any tax from citizens without the authority of law made by the legislature. The legislature makes laws which the executive is duty-bound to enforce. The legislature has the power to throw out a government when it loses the confidence of the house.
Now, when the constitution vests all these powers in the legislature, it expects the legislative branch to carry out these functions in the most effective manner. For this purpose, the legislature establishes systems to ensure the accountability of the executive. The most crucial system is an independent secretariat for the legislature. But this is also its Achilles’ heel.
Article 98 of the constitution provides for a secretariat for each house of parliament with a staff which is independent of the executive and free from its control. The reason is obvious. The secretariat is the eyes, ears and arms of the legislature. If the secretariat is under the control of the executive, the legislature will most surely fail to perform its most fundamental duty of scrutinising the functioning of the executive.
Legacy of another Patel
The new generation of parliamentarians may not have heard of Vithalbhai Patel. The present government has left no stone unturned in dinning the name of Sardar Vallabhbhai Patel into the nation’s consciousness. But everyone has forgotten the role and contribution of Vithalbhai Patel, the elder brother of Vallabhbhai Patel and the first Indian speaker (president) elected to the Central Legislative Assembly in 1925.
The elder Patel laid down the basic rules for the independence of the legislature and its secretariat in India. He fought a long battle with the colonial government for an independent secretariat for the Central Legislative Assembly because he was conscious of the fact that the legislature can perform its basic functions only with the help of a secretariat which is free from the control of the government.
At last, Vithalbhai won the battle and an independent secretariat was established on January 10, 1929. Vithalbhai was a fearless, independent and impartial speaker who gave many rulings against the colonial government. Though the government did not like many of those rulings, in the best traditions of the British parliamentary system, they chose to obey the speaker. These are facts of history.
These facts need to be remembered in the present context when the control of the executive on the legislature is growing alarmingly.
If anyone has a long-term plan to subvert the legislature, the first thing he/she will do is to dispense with the independence of the secretariat of the legislature. This can be achieved by inducting officers of the executive in the legislature secretariat. Being trained to serve the executive, the concept of independence of the legislature secretariat is alien to them. They will gain control of the core functions of the secretariat – like admitting parliament questions, preparing the reports of committees, and a host of other functions which have a bearing on the legislature’s scrutiny of the government. It is an unfortunate fact that this insidious process of subversion of Indian legislatures has been going on for some time. This is in clear violation of the constitution which contains various provisions to insulate the legislature secretariats from executive control.
To my mind, this is a major challenge which the Indian legislatures are facing. Members of parliament or of the state legislatures do not seem to be sufficiently aware of this threat to the parliamentary system. When crucial questions are disallowed or recommendations or observations of various house committees are ‘sanitised’ or made bland and unfocused, the members may not be aware of the fact that this is precisely what the executive wants the legislature to do.
In order for parliament and the state legislatures to survive as the watchdogs of public interest, a deep understanding of parliamentary history and traditions and, above all, the constitutional role and responsibilities of the Indian legislature is necessary.
While we are justifiably concerned about the delay in the convening of parliament, we must also pay some attention to the slow process of subversion of the legislature by the executive. The institutional integrity of parliament is like chastity. Once lost, it is gone forever.