In general parliamentary constitutional scheme, the work of Parliaments is to make laws, scrutinise the role of the executive, and 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 for both Houses.
This framework of steering the functions of government was introduced to ensure that no branch of government would become too puissant in their command and authority.
In light of certain events that have unfolded in India in the recent past, it is important to reiterate the significance of bicameral legislative checks, the first line of checks against any arbitrary executive actions. These events signal an ugly tale of how this system of legislative accountability is being sabotaged by the sitting government.
In order to further explore how this is happening, the aims and objects of the bicameral legislature and its historic context need to be first made clear.
Constitutional scheme of bicameralism
The basis of an Upper House for a Parliament, and of its position and function in the parliamentary democratic sphere, has always remained a subject of passionate and fiery debate. In the accounts of constitution making, there are occasions of statesmen, writers and thinkers expressing antithetical views on the efficacy of an Upper House.
Some have held that a Second Chamber is destructive of “the will of the people” manifested through the publicly elected Lower House, while others have underlined the need for such a House as “a safeguard against the tyranny of a single-chamber Legislature.”
In the Constituent Assembly, during the discussion on the need for a Second Chamber at the Centre, divergent views were expressed. Various reasons were cited in favour of a Second Chamber – to allow for a second look at Bills that may be the product of electoral equations or tyranny of the popular majority, create a platform for more deliberative and nuanced debate, ensure a check on hasty and ill-conceived legislation and strengthen the federal structure.
On the other hand, the legendary French constitutional expert, Emmanuel-Joseph Sieyès, popularly known as abbé Sieyès, totally rejected the concept of a Second Chamber with his oft-quoted observation: “If a Second Chamber dissents from the first, it is mischievous; if it agrees, it is superfluous”.
Dr BR Ambedkar, while responding to this criticism, in the Constituent Assembly, said: “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 abbé Sieyès.”
The logic of checks and balance
Unlike the Rajya Sabha, the Second House of the Indian Parliament, which by default is free from the majoritarian passions that can often sway the parliamentarians, the Lok Sabha is a publicly elected chamber. Thus, in effect, if not in form, the Lok Sabha – house to the party with a majority of members – invariably begins to serve as an executive organ of the government when it is supposed to be a legislative body.
Without any 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 notorious ‘rule by decree’.
On the contrary, Rajya Sabha – which is independent from the elected Lok Sabha, more balanced and deliberative in nature, and free from the siege of electoral politics – is supposed to check and scrutinise the Lok Sabha, which otherwise is a chamber of Prime Minister along with his council of ministers when occupied with a thumping majority. It is even more so, in the wake of anti-defection laws, which disallow intra-party dissent.
In turn, the Rajya Sabha is made to play an important role in checking and balancing the actions of the popularly-elected government. Its creation, therefore, is a counter to what James Madison saw as the “fickleness and passion” that could absorb the publicly-elected House.
The Money Bill as a tool of sabotage
In recent years, the government of India, which is the executive arm, has subverted this separation of powers (legislative check) by bypassing the Rajya Sabha through the instrumentality of Money Bill(s). Notably, certifying a Bill as a Money Bill, which otherwise is a normal Bill, has very serious consequences as it rules out scrutiny by Rajya Sabha.
For the sake of clarity, at the outset, the law related to the Money Bill need to be made clear. Article 109 of the Constitution lays down a special procedure with respect to Money Bills and Article 110 lays down strict criterion 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 Bill to a Money Bill.
Of late, there have been continued deliberate attempts to stifle the Upper House’s scrutiny of the Bills passed by the Lok Sabha, such as in the case of the Electoral Bonds Scheme. The manner adopted in passing of the Electoral Bonds law is symbolic of its arbitrary provisions. The Act, despite being completely lacking in the character of a Money Bill, was nevertheless introduced as a Money Bill in the Lok Sabha, which passed it after rejecting five amendments proposed by the Rajya Sabha. In the present case, even “some 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. Notwithstanding, it is another matter that the next election cycle is round the corner, and so many of them have passed ad interim. Yet, after nearly three years, the constitutional challenge to electoral bonds is still awaiting to be heard before the Supreme Court.
Silencing the opposition’s Voice through voice voting
Even more recently, the pull of the Upper House was bypassed yet again, though in a distinct fashion, in passing the much controversial set of three farm Bills – the Farmers’ Produce Trade and Commerce (Promotion and Facilitation) Bill, 2020 and the Farmers’ (Empowerment and Protection) Agreement of Price Assurance and Farm Services Bill, 2020 (collectively referred to as the “Farm Bills”).
The Rajya Sabha rules are designed to moderate the procedure and conduct of business of the Upper House. The provision for voice vote, which is the most sought-after means of decision-making in Parliament, is under Rule 252. This rule states that on the conclusion of a debate, the Chairman of the Rajya Sabha shall put the question before the Members of the House and invite those in favour to say “Aye” and those opposed to it to say “No”.
As per the Rules, if the voice vote gets challenged, members have the right to ask for what is called as ‘division’. It is, among others, one of the key procedure of the parliamentary system, as it effectively checks the strength of the ruling party.
It is now well-known that the infamous Farm Bills were passed through a voice vote despite repeated demands for division of votes. Even the audio telecast of proceedings were reportedly muted at this point. All this was done with sheer disregard to the Rules of Procedure and Conduct of Business in Rajya Sabha.
What was that but not a fraud on constitutional values? The idea behind parliamentary system is that the electorate periodically asses the government when elections are conducted, while daily assessment is at the behest of Members of Parliament through questions, resolutions, no-confidence motions, adjournment motions and debates on addresses. These are now being sabotaged by various means.
Further, any way you slice it, the recent suspension of winter session of the Indian parliament by the BJP-led government is furtherance of the same agenda – that of escaping legislative checks. These incidents, as discussed above, illustrate the worrying state of affairs in the Indian parliamentary system and its workings.
It would be naïve to suppose that these are isolated cases and don’t imply to any clear pattern. They are, in fact, not merely a point on plane, but an entire curve signifying a recipe of disaster.
It is clear that the popular government (executive) in India is hell-bent on avoiding various legislative checks and the inherent parliamentary idea of consensus and debate. The essential safeguard of a bicameral legislature against the arbitrary executive actions are steadily becoming redundant.
Inevitably, then, we must ask what the solution is. On paper, in this regard, there has been much talk of the Aadhaar Judgment – that the speaker’s decision to certify a money bill is subject to judicial review. One wonders, however, if the solution is of any real value, judging by current trends wherein the Court, in the immortal words of Lord Atkin, have become “more executive-minded than the executive.”
Views expressed are the author’s own.