Amidst a raging pandemic, the largest quarterly contraction of the domestic economy in several years, large scale alienation among the people of Kashmir and an aggressive China at our doorsteps, the President of India summoned the Parliament to meet from 14 September till 1 October, 2020.
While these testing times require the government to answer important questions and be held accountable to the elected representatives of the people, the new arrangements made for the upcoming session seriously undermines the powers of the Parliament.
The right of parliamentarians to demand answers from the council of ministers is essential to maintain parliamentary democracy, which is premised on the accountability of the executive to the legislature. However, in the upcoming session, the question hour has been suspended, thereby removing the only avenue which obliges ministers to immediately respond to queries from the MPs.
Under Rule 32 of the Rules of Procedure and Conduct of Business in the Lok Sabha (“the Rules”), the Speaker is empowered to direct whether the first hour of every sitting should be made available for questioning ministers. It is possible that there are logistical difficulties in obtaining data from various ministries due to social distancing norms, and if such a difficulty arises, the concerned minister can explain to the Speaker as to why an answer to a question cannot be provided and give an assurance to the member that his or her question will be answered in the next sitting of the Parliament.
A temporary arrangement along these lines can be made through directions issued by the Speaker using his residuary powers, or by convening the Rules Committee to propose temporary rules to the Lok Sabha. If ministers need to be briefed before providing an answer, then the officials can brief them virtually prior to the sitting. Instead of exploring such options, the Speaker has given a carte blanche to the government by suspending the question hour.
The government may cite past instances in which the question hour was suspended, such as when Parliament met during the invasion by Pakistan in 1971. However, this argument fails to take into account the numerous technological advancements made since the early 70s.
It is much easier for the government to collate and transmit information, compared to the state of affairs nearly 50 years ago.
While setting aside the first hour of every sitting for question and answers is not constitutionally mandated, the exercise of questioning ministers is part and parcel of a parliamentary democracy, which is a component of the basic structure of the Constitution.
Therefore, it is incumbent on the Speaker to explore less restrictive measures, such as reducing the number of questions to be answered on a given date or temporarily restricting the number of supplementary questions which can be raised. The Speaker could have also looked at the methods adopted in other Parliaments such as in the UK, which has conducted business despite the pandemic.
In light of the Opposition outrage to the suspension of question hour, the government has agreed to provide written responses to unstarred questions. However, this is inadequate as starred questions provide MPs the opportunity to cross examine the minister about the steps taken by the government. There have been instances in which the government has provided written answers, ignoring some of the components of the question posed to them. It would be more difficult for a minister to avoid difficult questions when they have to provide oral answers.
Suspending starred questions is convenient for the ministers, and effectively places a muzzle on Parliament.
At the request of the government, the Speaker has also suspended the time allotted to introduce and debate private member’s bills. As per Rule 26, the last two and half hours of a sitting on a Friday is allotted for the transaction of private member’s business, which includes private member’s bills and private member’s resolutions. A private member’s bill is a bill introduced by an MP who is not a minister and has the same force as a government bill. Article 245 of the Constitution gives Parliament the power to make laws for the country.
This power is not restricted to only the treasury benches; it is vested in every MP. While procedural aspects such as the timing for the introduction a bill or the notice period to introduce a bill can be regulated by the Rules as provided under Article 118, the Speaker does not have the power to extinguish or suspend the right of a legislator to introduce legislation. Rule 26, unlike Rule 32 in the case of question hour, does not give the Speaker the discretion to suspend the introduction of private member’s bills. Rather, it only enables him to determine an alternate date, if there is no sitting on a Friday, or to allot any other day other than a Friday.
However, it is possible to suspend a rule during a sitting through the approval of the House, using the powers under Rule 388. Therefore, if the government desires to use the time meant for private member’s bills to introduce bills of its own, then the concerned minister must take the consent of the Speaker and the approval of the Lok Sabha to move a motion under Rule 388, to suspend Rule 26. However, even the power of suspension cannot be resorted to on multiple occasions to nullify the right of MPs to introduce Bills for the whole session.
The Speaker’s decision to accept the government’s recommendation to suspend private member’s bills for the entire session should be reconsidered, and every effort must be made to allow MPs to introduce their Bills.
Parliamentary committees have faced hurdles in their functioning due to the pandemic. These committees act as the eyes and ears of the Parliament by devoting time to study subjects, questioning experts, witnesses and relevant parties, and reporting to the Parliament with recommendations and findings.
Due to the pandemic, several members of Parliamentary committees were unable to meet in person in the Parliament building. Therefore several MPs wrote to the Speaker requesting permission to hold virtual hearings. It was reported that virtual meetings were disallowed by the Speaker because it would supposedly require the approval of both Houses of Parliament to make rules for virtual meetings and that such an arrangement would violate the confidentiality norms required for the proceedings of the committee.
A virtual meeting of a Parliamentary committee like a standing committee does not change the powers or the procedures of the committee. It merely allows members from different venues to attend a meeting. While committees are expected to meet inside the precincts of the Parliament, the Speaker is empowered under Rule 267 and under Direction No. 50 to allow meetings outside the Parliament complex. Therefore, a separate approval from the Parliament is not required.
On the question of confidentiality, it should be kept in mind that the council of ministers has held multiple virtual meetings. The prime minister also briefed leaders of all major political parties about the sensitive border situation with China, through video conference.
The confidentiality of Parliamentary Committees is only mandated by the Rules, whereas the confidentiality of meetings of the Cabinet or council of ministers is rooted in constitutional law.
In RK Jain v Union of India, the Supreme Court held that collective responsibility of the council of ministers under Article 75(3), inheres maintenance of confidentiality. Ministers are also required to take an oath of secrecy as provided under the Third Schedule of the Constitution.
The court explained that unlike Cabinet decisions, cabinet deliberations must be kept secret so as to allow frank and open discussions. Therefore, collective responsibility and confidentiality are “twins” to make collective decisions for the public interest.
If the Cabinet, which is constitutionally mandated to maintain secrecy with its meetings, can meet virtually while maintaining its confidentiality norms, there is no reason to exclude the extension of the same facilities to Parliamentary committees.
The country is facing a turbulent period, and this requires a government which is not only responsible, but also responsive to the Parliament. Ministers must clearly explain what steps they are taking to deal with China, with the crisis in Kashmir, with the economy and with the pandemic. COVID-19 may have put many in hospital, but there is no reason to pack off the Parliament to an emergency ward, when it is needed the most.
There is no pandemic exception to a Parliamentary democracy.
(Arvind Kurian Abraham is a lawyer specializing in constitutional law. He tweets @ArvindKAbraham. This is an opinion piece and the views expressed are the author's own. The Quint neither endorses nor is responsible for them.)