When “Rule Of Law” Becomes “Rule By Decree” In Parliament

By Vaidushya Parth

In the Indian constitutional scheme of things, the work of Parliament is to make laws (legislation), check the work of the government (scrutinising the role of the executive), and to conduct debates on current issues of public importance. Generally, the decisions made in one House have to be approved by the other. In this manner, the two-chamber system performs as a check and balance. This set-up was introduced to ensure that no branch of government becomes too puissant in command and authority.

This bicameral legislature is the first line of checks against any arbitrary executive action. The basis of an Upper House and its position and function in parliamentary democracy has always remained a subject of passionate and fiery debate. In the accounts of Constitution-making, there were occasions when statesmen, writers and thinkers expressed antithetical views on the efficacy of an Upper House. Some held that a Second Chamber was destructive of “the will of the people”, illustrated and manifested through the publicly elected Lower House, while others underlined the need for such a House as “a safeguard against the tyranny of a single-chamber Legislature”.

In the Constituent Assembly, during a discussion on the need for a Second Chamber, divergent views were expressed. The following reasons were cited in favour of it: (a) the requirement for a second look at Bills which may be the product of electoral equations or the tyranny of the popular majority; (b) the Second Chamber is more deliberative and nuanced; (c) the Second Chamber acts as a check on hasty and ill-conceived legislation; (d) it strengthens the federal structure.

On the other hand, the great French constitutional expert, Abbe Sieyes, who rejected the concept of a Second Chamber, said: “If a Second Chamber dissents from the first, it is mischievous; if it agrees, it is superfluous.” Responding to this criticism, Dr B.R. Ambedkar, the architect of the Indian Constitution, said in the Constituent Assembly: “The [second part] of the criticism of Abbe Sieyes is undoubtedly valid because it is so obvious. But nobody has so far [endorsed the first part of the criticism] of Abbe Sieyes.”

The Lok Sabha (the Lower House) is a publicly elected chamber. The political party with the largest number of seats there forms the government. It alone is responsible for making decisions on Money Bills. The Rajya Sabha can consider these Bills, but cannot block or amend them. The Lok Sabha, in effect, if not in form, begins to serve as an executive, rather than a legislative (which it is ideally supposed to be) organ. The Lower House, inter alia, is therefore swayed by public passions, engrossed in ugly equations of electoral politics and eventually results into the epitome of majoritarianism.

Therefore, without effective bicameral legislative checks, the government of a parliamentary constitutional republic, at best, becomes an elected autocracy, and the sacrosanct “rule of law” takes the face of the notorious “rule by decree”.

To counter this, the Rajya Sabha, the second House, is independent of the elected Lok Sabha, and more balanced and deliberative in nature. Free from the siege of electoral politics, it is supposed to check and scrutinise the Lok Sabha, which in disguise is nothing but a chamber of the prime minister along with his council of ministers. This is especially so when it is occupied with a thumping majority, and in the wake of anti-defection laws, it disallows intra-party dissent.

The Rajya Sabha, therefore, is made to play an important role in checking and balancing the actions of the popularly elected government. Its creation is a counter to what James Madison saw as the “fickleness and passion” that could absorb the publicly elected House. He noted further: “The use of the [Upper House] is to consist in its proceeding with more coolness, with more system and with more wisdom, than the popular branch.”

The framers of the Indian Constitution consequently attempted to erect the government – following the Westminster model — on the edifice of various limits, controls and checks between the executive and the legislature. More importantly, this separation of power was not intended to be a mere matter of form but of substance.

In recent years, the government, however, bamboozled this separation of powers by bypassing the Rajya Sabha through the instrumentality of the Money Bill (s). Notably, certifying a Bill as a Money Bill, which otherwise is a normal Bill, has serious consequences, as it rules out the security of the Rajya Sabha. Of late, there have been continued and deliberate attempts to prevent the Upper House’s scrutiny of Bills passed by the Lok Sabha, including the Electoral Bonds Scheme.

The manner adopted in passing these Bonds is symbolic of its arbitrary provisions. The Act was introduced as a Money Bill in the Lok Sabha and passed by it after rejecting five amendments proposed by the Rajya Sabha despite completely lacking the character of a Money Bill.

At the outset, the law related to Money Bills needs to be clear. Article 109 of the Constitution lays down a special procedure with respect to Money Bills and Article 110 lays down strict criteria as to the categorisation of a Bill as a Money Bill. Clause (I) of Article 110 defines what will constitute a Money Bill. However, as per clause (2), the mere inclusion of some provisions relating to the matters listed in Clause (I) cannot transform the character of a Bill from an ordinary one to a Money Bill.

In the present case though, even those “provisions” were absent. The question, therefore, of whether a statute violates the provision of the Constitution is one of illegality and open to judicial review. It is another matter that the next election cycle is around the corner — so many of them have passed ad interim – yet, the constitutional challenge to electoral bonds is waiting to be heard before the Supreme Court after nearly three years.

Even more recently, the Upper House was bypassed in a distinct fashion by passing the controversial three farm Bills through a voice vote despite repeated demand for division of votes. This can only be termed as a “fraud on the constitutional values”.

Also, the suspension of the Winter Session is a furtherance of the same agenda–escaping legislative checks. These incidents illustrate the worrying trend in the parliamentary system and its working. It would also be very naïve to suppose that these are isolated cases and therefore, don’t imply a clear pattern. They are, in fact, not merely points on a plane, but exemplify an entire curve, and is a recipe for disaster.

For these reasons, the popular government is hell-bent on diluting various legislative checks and the inherent parliamentary idea of consensus and debate. The essential safeguard of a bicameral legislature against arbitrary executive action has become redundant.

So what is the solution? On paper, there has been much talk of the Aadhaar judgment – that the Speaker’s decision to certify a Money Bill is subject to judicial review. But is this solution of any real value considering current trends where the Court, in the immortal words of Lord Atkin, has become “more executive-minded than the executive”. (IPA Service)

Courtesy: The Leaflet

https://www.theleaflet.in/when-rule-of-law-becomes-rule-by-decree-in-parliament/#