Archive for October, 2012

Funeral of Parliament

Posted on October 16, 2012. Filed under: Uncategorized |

Funeral of parliament

Jagdeep S. Chhokar

Published in GovernanceNow, October 16-31, 2012, pp.41-45

MPs once resolved to preserve and enhance the prestige of
parliament. Then all political parties conspired to do precisely the
opposite. Is there any hope? Yes, but…

“Let me assure you that for 15-20
years now, we have been attending
the elongated funeral rites of the
parliamentary system.”
– Arun Shourie, in The Indian Express,
September 18, 2012

Funeral of any parliament is
most certainly not a trivial
matter. On the contrary, it
is extremely serious. And
when the matter concerns
the parliament of India,
the largest democracy in the world, it is
not only a matter of life or death for all
Indians but also should be a matter of
concern to the entire world, given India’s
current, expected, and hoped for position
in the comity of nations.

Under normal circumstances, any
observation alluding to the funeral of
a parliament should be ignored lest it
creates an unnecessary confusion and
misunderstanding. One would do that if
the person making the allusion is a rabid
rabble-rouser and headline hunter, and
consider the statement to be scandalous,
heretical, even seditious following the
currently popular interpretation of Section
124A of the Indian Penal Code. But
when the person making the statement
is a Padma Bhushan, Magsaysay award,
Dadabhai Naoroji award, Astor award,
KS Hegde award, the International Editor
of the Year award, and The Freedom
to Publish award winner, and one of the
International Press Institute’s 50 World
Press Freedom Heroes of the past 50
years, it is hard to take it figuratively and
ignore it. It calls for a serious consideration.
Why would Arun Shourie say so?
Let us look at the context.

For two sessions of parliament has not
done any work, or more appropriately,
has not been allowed to do any work. In
the same interview to the Express, Shourie
also referred to a unanimous resolution
passed by both houses of parliament
on September 01, 1997, titled “Agenda
for India”, in a special session as part of
the celebrations “on the occasion of the
Golden Jubilee of Independence”. What
does that resolution say? The first few
paragraphs, relevant to our discussion,
are reproduced below.

“We, the Members of Lok Sabha, meeting
in a specially convened Golden Jubilee Session
of both Houses of Parliament, to commemorate
the completion of half a century
of freedom;
Having remembered with gratitude the
great sacrifices made and the salutary service
rendered by our freedom fighters;
Having recalled with deep satisfaction
and pride the maturity of our people in
vigilantly preserving democracy and safeguarding
the unity of the nation and the
valour of our soldiers, sailors and airmen,
including ex-servicemen, in service to the country;

Having reflected upon the state of
the nation with the Preamble to the
Constitution as the guide;
Having then, specifically deliberated
upon matters concerning our
current political life, state of democracy
in the country, our economy,
infrastructure, science, technology
and human development;
Do now solemnly affirm our joint
and unanimous commitment to the
issues hereinafter mentioned, and we
also do solemnly resolve and direct
that they be adopted as minimum
tasks, constituting our ‘Agenda for
India’ on this historic occasion:
That meaningful electoral reforms
be carried out so that our Parliament
and other legislative bodies be
balanced and effective instruments of
democracy; and further that political
life and processes be free of the adverse
impact, on governance of undesirable
extraneous factors including
criminalisation;
That continuous and proactive
efforts be launched for ensuring
greater transparency, probity and accountability
in public life so that the
freedom, authority and the dignity
of Parliament and other legislative
bodies are ensured and enhanced;
that more especially, all political
parties shall undertake all such steps
as will attain the objective of ridding
our polity of criminalisation or its
influence;
That the prestige of Parliament
be preserved and enhanced, also
by conscious and dignified conformity
to the entire regime of Rules of
Procedure and Conduct of Business
of the Houses and Directions of the
Presiding Officers relating to orderly
conduct of business, more especially
by –
– maintaining the inviolability
of the Question Hour.
– refraining from transgressing
into the official areas of the
House, or from any shouting of slogans,
and,
– invariably desisting from
any efforts at interruptions or interference
with the address of the President
of the Republic.”
What does a respectful citizen
make of this resolution and subsequent
happenings?
Prestige of parliament
It will take too long to count and
enumerate the occasions on which
honourable members of parliament
have not maintained “the inviolability
of the Question Hour”, have
transgressed “into the official areas
of the House” such as the well of the
house, and have resorted to “shouting
of slogans”. So much for preserving
and enhancing “the prestige
of Parliament”!

What does a citizen make of the
fact that the leader of the opposition
in one of the houses announces in
the evening that they would not allow
parliament to function the next
day? Is such premeditated prevention
of parliament from functioning
not an offence against democracy,
and thus against the nation? A simple
reading of the above resolution
would suggest its gross violation.

As for “conscious and dignified
conformity to the entire regime of
Rules of Procedure and Conduct of
Business of the Houses and Directions
of the Presiding Officers relating
to orderly conduct of business”,
the image of Somnath Chatterjee
urging the honourable members
with folded hands to take their seats
is etched in the memory of the
nation.

Should the presiding officers be
folding hands and be helpless, and
restrict themselves to requesting
the members to take their seats,
maintain decorum, observe silence,
etc., and in extreme cases adjourn
the house for two hours, till after
lunch, or till the next working day?
Or should they implement and enforce
the “solemn affirmation” and
“joint and unanimous commitment”
of the two houses which they have
“solemnly resolve(d) and direct(ed)”
for adoption as “minimum tasks” on
an “historic occasion”?

Should the ruling dispensation
watch helplessly and try and score
brownie points in debates in newspaper
columns and TV studios, or
should they perform their constitutional
duties, and assist and help the

presiding officers perform their constitutional
duties in the enforcement of
unanimous resolutions of the temple of
democracy?

Should the duties and responsibilities
of the presiding officers be limited
to honouring the wishes of the current
members, their electors, or should they
also feel some sense of accountability to
either the house itself as an institution,
or to the constitution, or to what is best
called “We, the people”?

Criminalisation, transparency, probity
and accountability

Now to the two paragraphs that come
even before the part about the “prestige
of Parliament”.

It was “solemnly resolve(ed) and
direct(ed)” that one of the “minimum
tasks” was to carry out “meaningful electoral
reforms… so that our Parliament
and other legislative bodies be balanced
and effective instruments of democracy;
and further that political life and processes
be free of the adverse impact, on
governance of undesirable extraneous
factors including criminalisation” (italics
added).

This was to be achieved by “continuous
and proactive efforts… for ensuring
[]greater transparency, probity and
accountability in public life[] so that the
freedom, authority and the dignity of
Parliament and other legislative bodies
are ensured and enhanced; that more
especially, all political parties shall undertake
all such steps as will attain the
objective of ridding our polity of criminalisation
or its influence” (italics added).

First, electoral reforms. The resolution
was passed in September 1997.
In May 1999, the Law Commission of
India submitted its 170th report to the
then law minister in which it suggested,
inter alia, that persons who have been
convicted of criminal charges or have
criminal cases pending against them be
barred from contesting elections. It was
reiterated by the National Commission
to Review the Working of the Constitution
in 2001, was recommended by the
Election Commission first in 1998 and
reiterated again in 2004. The Second
Administrative Reforms Commission also
suggested this in 2008. But parliament
that included it as one of the “minimum
tasks” has not found time or occasion to
do anything about it. On the contrary,
when the supreme court ordered in 2002
that all candidates contesting elections
should mandatorily disclose criminal
cases pending against them, an all-party
meeting decided not to allow that and
parliament unanimously amended the
Representation of People Act to prevent

that from happening. That the supreme
court struck down that amendment is a
separate story.

Now about “all political parties (taking)
continuous and proactive efforts… for
ensuring greater transparency, probity
and accountability in public life.” An
effort to obtain copies of income tax
returns of political parties was opposed
tooth and nail by political parties, although
they enjoy 100% exemption on
their incomes under the Income Tax Act,
till the central information commission
(CIC) ordered the income tax department
to make them public. Now all political
parties, except the Communist Party
of India, are maintaining in a proceeding
in the CIC that they will not give any
information about their income. These,
presumably, are part “continuous and
proactive efforts (being made) for ensuring
greater transparency, probity and
accountability in public life”.
This is the fate of the first part of the
“unanimous resolution” on an “historic
occasion”. Let us not worry too much
about the other parts of the resolution
that referred to economically sustainable
population growth, universalisation
of primary education by 2005, quality of
life, gender justice, inculcation of values,
creation of a scientific temper, and the
like.

Passing the resolution

While the resolution was passed unanimously,
there was an interesting interlude.
One of the honourable members
made an astute comment, “We have to
ensure the compliance of this Resolution
as it is approved by all the Members
and the nation. I suggest – I do not think
that it is inappropriate – that there must
be an all-party committee to see that the
Resolution and the terms of the Resolution
are quickly complied with. We cannot
say that the Cabinet will do the whole
thing. The Cabinet cannot stop Hon.
Members from shouting; the Cabinet cannot
stop Hon. Members from rushing to
the well of the House.”

The speaker countered this: “We have
taken a Resolution unto ourselves to
perform our responsibilities as political
parties.”

The honourable member persisted,
“I suggest that an all-party committee
should be formed to ensure strict
compliance of this Resolution” which,
the record, sadly says, was followed by
“Interruptions”.

Funeral and death

When one thinks of a funeral, a macabre
but essential condition comes to mind.
One has to die before a funeral can take
place. If Shourie says that “we have been
attending the elongated funeral rites of
the parliamentary system” and that too
“for 15-20 years now”, what does it say
about the state of the parliamentary
system? Does one dare suggest that the
parliament system died about 15-20
years ago? Or started dying 15-20 years
ago? Institutions can be set up by executive
fiat, legislation, social compact or
whatever, but they take time to evolve
and really come into their own. In the
same vein, they also do not die instantly,
they decay over time, and linger with
their efficacy becoming less and less till
the life and blood disappear and only the
skeleton remains.

The length of the funeral rites is also
determined by the entity that is dying
and the process of death. The case of an
instant death is different but when the
process of death is prolonged, the funeral
rites begin when the survivors come to
realise that the end is inevitable but will
take time in coming.

The questions raised above do not
have easy answers and it is also extremely
discomforting to think about
these questions but think, we must!
Because if we do not think about them,
we will be guilty of letting the disease
fester, and thus ensure the dreadful
outcome—death.

Is resurrection possible?

I believe the answer is a clear and emphatic
YES, and it is contained in the
Resolution itself. The Resolution has
“directed” that “all political parties []
shall[] undertake all such steps as will attain
the objective of ridding our polity of
criminalisation or its influence” and that
“greater transparency, probity and accountability
in public life” be ensured.
An effective way of ensuring this has
been provided by the law commission in
their report:

“On the parity of the above reasoning,
it must be said that if democracy and
accountability constitute the core of our
constitutional system, the same concepts
must also apply to and bind the political
parties which are integral to parliamentary
democracy. It is the political
parties that form the government, man
the Parliament and run the governance
of the country. It is therefore, necessary
to introduce internal democracy, financial
transparency and accountability in the
working of the political parties. A political
party which does not respect democratic
principles in its internal working cannot
be expected to respect those principles in
the governance of the country. It cannot
be dictatorship internally and democratic
in its functioning outside” (Para 3.1.2.1).
It is, thus, for the political parties to
choose whether they want the “elongated
funeral rites” to continue leading to a
slow, gradual, painful death of parliament,
and consequently, of democracy in
the country or they want to save parliament
and democracy by becoming
demonstrably democratic and financially
transparent in their internal functioning.

Here’s hoping they make the right
choice!

Chhokar is a former professor, dean, and director
in-charge of IIM, Ahmedabad. He now
lives and works in Delhi.

Four MPs and an expert on the way parliament functions

Manish Tiwari, Congress, MP

Arun Shourie used very
colourful words but the
fundamental point was
correct. Because if we
are going to have a dysfunctional
parliament
and a legislature which
does not function for
more than a month in a
year, it means that democracy
is a casualty.
The responsibility of
ensuring that parliament
functions properly
is of each and every
one who has a stake in
the system.
A combination of constitutional
amendments
and a level of firmness
can rejuvenate the system.
First there should
be a constitutional
amendment which
must mandate that
parliament functions
for at least 120 days in
a year. There should
also be an amendment
to ensure that the state
legislatures should
function for minimum
90-100 days in a year.
Also, anyone who disrupts
the functioning
of parliament should
be suspended for the
entire session.

Basudeb Acharia, CPM, MP

Last session was mainly disrupted by the BJP and its allies on
the coal scam. But BJP cannot be held solely responsible. It is
also the government’s responsibility to respond to the opposition’s
demands. We wanted a debate on that issue but the government
was not interested. The government must take action
against people who are corrupt and are involved in this scam.
What we demand is that all allocations should be cancelled and
an inquiry be instituted against those involved. But the government’s
unresponsiveness compelled us to take such steps. In
the 2011 winter session the government agreed to constitute a
JPC but later they denied it. The entire session was disrupted.

Shivanand Tiwari, JD-U, MP

Parliament sits for, say, 100 days in a
year and hardly 20-30 percent times
it is disrupted. It is not a big thing. If
we study the parliamentarian system
around the world, such disruptions
are very common. Parliamentarians
hit each other, disrupt the proceedings…
We need to understand that it
is a difficult situation for the opposition
parties which feel helpless. They
feel that the government can use its
majority and can decide on issues of
national importance. And that is the
reason they disrupt the proceedings.

Mohan Singh, Samajwadi Party, MP

It is a wrong notion that no work takes place
in parliament. A lot of work has happened in
the last two sessions. MPs work through parliament
committees and they submit their reports
in the house. But, yes, I agree a lot of disruption
has happened recentl,y especially during the
question hour, which is wrong. The announcement
by a leader of opposition that they will not
let parliament function the next day is wrong.
But if there is an issue on which a debate is
required and the speaker does not let you speak
or the government is not answering then it is
our right to speak against it. Because these are
two different cases. As MPs, it becomes our responsibility
to ensure that the system functions
properly. At least the question hour should not
be disturbed because that is the only time you
can get answer from the government.

Devika Malik, PRS Legislative Research

There has not been much legislative activity in parliament this year.
As many as 102 bills are currently pending with parliament. This
backlog includes bills like the national food security bill, land acquisition
and rehabilitation bill and some key financial sector bills. The
15th Lok Sabha has so far witnessed two sessions, winter 2010 and
monsoon 2012, when no legislative or for that matter any parliamentary
work was transacted. This raises uncomfortable questions
about the way our parliamentary democracy has been functioning.
Further, it makes people question whether it is worthwhile engaging
with the political and legislative processes.

———————————————

Monsoon session was a washout
The monsoon session of parliament, from August
8 to September 07, saw little business. Several
hours were lost due to interruptions on the
issues of black money and violence in Mumbai
in the first week of the session. The functioning
of parliament was stalled on the rest of the
days over the demand for the prime minister’s
resignation over the allocation of coal blocks. Lok
Sabha worked for 20% of the scheduled hours
and Rajya Sabha for 27%. Thirty bills were to be
passed, but only four could be passed. Sixteen
bills were to be introduced, only six could be.
Budget session was not so bad, though
During the budget session (March 12 to May 22,
2012), only 14% of the time was spent on legislation
in Lok Sabha and 16% in Rajya Sabha. Seventeen
legislative Bills were introduced and 12
were passed. Several hours were lost due to interruptions
on the issues of non-availability of
bags for crop storage, Telangana, Aircel-Maxis
deal, Bofors and Maoism. Lok Sabha worked for
89% of the scheduled hours and Rajya Sabha for
94%.
In those days, MPs worked hard
n Lok Sabha met for an average of 127 days in
the 1950s and Rajya Sabha for 93 days. This
has decreased to 73 days for both houses in
2011.
n However, it must be noted that departmentally
related standing committees were instituted
in 1993. Since then, parliament refers
many bills/ issues to these committees for
detailed analysis. This work happens outside
the scheduled sittings of parliament.
n The All India Conference of Presiding Officers,
Chief Ministers, Minister of Parliamentary Affairs,
Leaders and Whips of Parties held in
2001 had called for immediate steps to ensure
that parliament meet for a minimum of
110 days every year. It had recommended that
this change be brought in through a constitutional
amendment if necessary.
Fewer bills pass these days
n The first Lok Sabha passed an average of 72
bills each year. This has decreased to 40 bills
a year in the 15th Lok Sabha.
n Parliament passed 118 bills in 1976: the highest
number for a single year.
n The lowest number of bills was passed in
2004: only 18.
Source: PRS Legislative Research

—————————————————————–

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No appointment with transparency

Posted on October 3, 2012. Filed under: Elections, Politics, Uncategorized |

No appointment with transparency

Jagdeep S. Chhokar

Published in GovernanceNow, September 01-15, 2012, pp.36-38.

The law minister announced
recently that the government
would soon bring in
a constitution amendment
bill to change the system of
appointment of judges to
higher judiciary, the supreme court and
the high courts. But focusing only on
higher judiciary is akin to counting the
trees and missing the forest. Several issues
come up if we look at the forest – of
appointments.

The first is why and how do our law ministers
get concerned about issues. Nearly
20 months ago, the then incumbent got
concerned about electoral reforms and
announced, with much fanfare, accompanied
by the then chief election commissioner,
about seven regional and one
national consultations. The regional consultations
did happen, in fits and starts,
but then that minister was shifted and the
current incumbent was brought in. The
national consultation never happened, a
couple of draft bills on electoral reforms
were prepared, media reported that the
minister had had meetings on the issue
with the prime minister, the chief election
commissioner of the day demitted office,
but the end result has been naught, at
least so far. Now, there does not even appear
to be talk of electoral reforms.

All of a sudden, the current minister
is so concerned about appointments to
higher judiciary that a constitutional
amendment is being contemplated. True,
the constitution has been amended many
times but most of the amendments happened
in a different political climate in
the country when the polity was not so
fragmented and not so brazenly partisan.

“We are fully committed to changing
the procedure for the appointment of
judges,” said the law minister, an accomplished
lawyer himself. The current
procedure has been in place since 1993,
when the supreme court put it in place.
The detailed rationale is given in the case
Supreme Court Advocates-on-Record Association
and another vs
Union of India, Writ Petition (Civil)
1303 of 1987, the judgment for which
was pronounced on October 6, 1993. It is
debatable if the situation of the judiciary,
one of the three pillars of democracy, has
deteriorated significantly more than the
other two pillars: the legislature and the
executive.

Yes, the judiciary has its weaknesses,
some of them glaring, such as huge backlogs
but then who is the biggest litigator
in the country, being the petitioner or
respondent in the maximum number of
cases in the higher courts—one estimate
says it is the government. And whose
counsels seek the maximum number of
adjournments? Another estimate points
to the government again.

The minister is also reported to have
said that the government was only trying
to bring in transparency in every
constitutional body in the larger interest
of democracy and good governance and
that the government was not bothered
about the “problems” it would have to
face as happened in the case of the Right
to Information (RTI) Act.

In this context, looking at the forest,
it might be appropriate to think about
transparency or otherwise of all other
appointments made by the government.
Since the minister referred to the
“problems” with the RTI Act (which was
championed by his own government,
and for which it rightly deserves to be
commended), it might be instructive to
reflect on how the appointment of information
commissioners have been made,
and continue to be made.

It is ironic that appointments under a
law, the raison d’etre of which is transparency,
are completely non-transparent.
An inspection of the file related to these
appointments some time ago, done using
the provisions of the RTI Act itself,
revealed that the concerned bureaucrat,
the secretary of the department of
personnel and training (DoPT), puts up
a note to the committee consisting of
the prime minister, the leader of the opposition
in the Lok Sabha, and a “union
cabinet minister nominated by the prime
minister” who is invariably the minister
in-charge of the DoPT, obviously “duly
constituted” as per the RTI Act, informing
the committee of the number of vacancies
for information commissioners
that exist, and suggesting or proposing
a list of names that should be appointed
for those posts. The committee usually
approves the names and those are
forwarded to the president for formal
appointment. Differences of opinion are
rare, in those cases where the name of
a seemingly controversial person is proposed
and the leader of opposition has
an objection. (The most celebrated case
of such a difference of opinion was that
of PJ Thomas’ appointment as central vigilance
commissioner that finally led the
supreme court to enunciate the doctrine
of institutional integrity.)

The process through which the proposed
list is arrived at is shrouded in
total secrecy. When the file was inspected,
resumes of a large number of people
were found in it, some who had offered
their own candidature and some who
had been recommended by “dignitaries”.
No information was forthcoming
about how some of these “candidates”
were “chosen” to be “recommended” for
appointment. The fact that more than
one secretaries of the DoPT have been
appointed as information commissioner
may contain a story of its own.

It is also somewhat baffling that the
desire to “bring in transparency in every
constitutional body in the larger interest
of democracy and good governance”
does not seem to have touched one of the
oldest constitutional positions, that of
governor of a state. Inspection of the file
concerning appointment of governors,
done again courtesy the RTI Act, revealed
even more startling information. All the
file had was a note initiated by the prime
minister’s office that, referring to a discussion
between the prime minister and
the home minister, said that it had been
decided to appoint the following persons
as governors of the following states. The
home ministry then got into action, obtained
the consent of the chief ministers
of the respective states, prepared the
warrants of appointment, sent it to the
president, and the same were issued. The
whole process took all of 24 hours! Talk
of speed and efficiency of operation, and
of course, of transparency.

When a body with such a track record
wants to bring in transparency in the
appointment of higher judiciary, and is
willing to go to the extent of even trying
to amend the constitution, is it not
legitimate to look for the motivation
behind such an action? Is it, by an outside
chance, a possibility that despite its many
drawbacks, weaknesses, and faults, the
judiciary is the only institution, along
with the election commission, that still retains
significant independence from the
executive, and occasionally pronounces
judgments that the government of the day
and the entire political class do not like?

This is a question to which we can
never have a definitive answer and each
one of us has to make one’s own judgment.
It is also a warning to the judiciary
to act quickly, and decisively, to make
improvements in its own functioning before
the political class makes inroads into
its independence.

Chhokar is a former professor, dean, and
director in-charge of IIM Ahmedabad. Views
expressed are personal.

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