4.2] Legislature

1. Working of Indian Parliament

India is a parliamentary democracy. In such a setup, parliament/legislature is the center of gravity. It is the most representative organ of the government, and also a supreme institution to maintain the accountability of the executive. Parliamentarians are the representatives of the people and through parliamentarians the ultimate responsibility towards the people is achieved.

Parliament of India consists of three parts i.e. the President, the Council of States (Rajya Sabha) and the House of the People (Lok Sabha). Rajya Sabha is also called the house of the elders, and the Lok Sabha as house of the people. While the former represents the states and union territories of India, latter represents people of India as a whole.

The conduct of the Indian Parliament is regulated by multiple rules and procedures. The constitution of India provides the structure, power and functions of the parliament. Further, each house (Lok Sabha and Rajya Sabha) has its own set of rules (Rules of Procedure and Conduct of Business in Lok Sabha /Rajya Sabha) that govern its proceedings, debates, committees, and conduct of members. The amendment to these rules is approved by the house before given effect.

Apart from the written laws, the conduct of parliament is also governed by the parliamentary conventions. It refers to the unwritten practices and norms that have evolved over time and are followed to ensure smooth functioning and uphold the democratic process. They are based on historical precedent and parliamentary practices in other democracies like the British.

The various functions of parliament can be discussed as follows:

1.1 Functions of Parliament

1. The most important function of a parliament is to make laws. This includes drafting, debating, and passing bills. For example, the Goods and Services Tax (GST) Act was passed by Parliament to create a uniform tax system across India.
2. To make significant changes to government policy or governance system, Parliament can also amend the Constitution. For example, with the Constitution (106th Amendment) Act, 2023, parliament made provision for reservation of one-third of all seats for women in Lok Sabha and State legislative assemblies.
3. Further, Members of Parliament (MPs) also represent the interests and issues of their constituents. They bring local issues to national attention, like debates on agricultural policies affecting farmers.
4. Through parliamentary proceedings, and mechanisms like question hour, MPs can hold the ministers accountable on a day-to-day basis.
5. Debate and discussion are considered as the core of democracy. Parliament is a forum for discussing national issues. This includes debates on policies, international relations, and social issues. This helps in arriving at better policy decision and also serves to educate the people.
6. Apart from the functions listed above, parliamentarians also perform electoral function by participating in the election of the President and Vice President of India. Parliament also wields power to impeach the President, judges of the Supreme Court, and High Courts for violation of the Constitution.

[The difference between parliamentary and presidential system and the reasons behind constitution makers choosing parliamentary system for India have already been discussed in topic 3] Salient Features of Indian Constitution -> Parliamentary System.]

2. Decline of Parliament

When parliament fails to do the primary task assigned to it, it indicates decline of parliament. Such a decline is accompanied by decline in the respect and faith on the parliament among the people. The decline of parliament also indicates the relative rise of other institutions i.e. executive and judiciary.

2.1 Indicators of Decline of Parliament

1. The rise of civil society activism, social movements show that people are not satisfied with the functioning of parliamentary democracy. e.g. There were huge farmers protests in 2020-2021, against the three farm laws passed by the Indian government. The protest led to the eventual repeal of the laws in November 2021.
2. The extensive use of ordinances, as allowed under Article 123 of the Indian Constitution, despite being an extraordinary measure, indicates a decline in the functioning and effectiveness of the Parliament. While around 4,500 bills have been passed since independence, approximately 750 ordinances have been issued. The high frequency of ordinances suggests a reliance on executive orders rather than democratic legislative processes.
3. The increasing reliance on ordinances can correlate with shorter parliamentary sessions and fewer sitting days. The average annual sitting days of the first Lok Sabha was 135 days, and the 17th Lok Sabha (2019-24), sat only for 55 days on average in a year.
4. According to the study, in 17^th Lok Sabha, 58% of Bills were passed within two weeks of their introduction. The J&K Reorganization Bill, 2019 and the Women’s Reservation Bill, 2023 were passed within two days of their introduction. 35% of Bills were passed with less than an hour of discussion in Lok Sabha. The corresponding figure for Rajya Sabha was 34.
5. Another indicator suggesting decline of parliament is the reducing number of Private Members (PMB) Bill being discussed. In 17th Lok Sabha, only two PMBs of them were discussed. During same time, 14 Private Members Bills were discussed in Rajya Sabha.
6. In addition to above, till date, only 14 PMBs have been passed and received assent. Notably, none such bill has been passed in both Houses since 1970.
7. The 17th Lok Sabha was the first ever to function without a Deputy Speaker, a constitutionally mandated position. Article 93 of the Constitution requires that the Lok Sabha elect a Speaker and a Deputy Speaker as soon as possible.
8. A significant number of parliamentarians face criminal charges, which impacts the integrity and image of Parliament.

We can also judge the performance of Indian parliament on the basis of the indicators given by World Bank to measure the performance. World bank has given 6 indicators.

1. Financial indicator – Parliament is a supreme institution of accountability of the govt. hence parliament’s financial accountability on cost of the country has to be evaluated.
2. Compliance – Parliament is a supreme institution of law making in the country. There is a need to assess how much parliamentarians comply with the rules of procedure which they make themselves for the conduct of parliament.
3. Efficiency – We have to evaluate the efficiency of parliament in terms of quality of work, time invested and cost involved.
4. Effectiveness – How much presence of the institution is felt in the country.
5. Relevance – How much qualitative improvement the institution is bringing in the life of the people.
6. Sustainability – Is institution in rise or decline?

2.2 Factors Responsible for Decline of Parliament

Initially decline was due to the overreach of executive and later on because of judicial activism.

1. Criminalization of Politics: The presence of a significant number of lawmakers with criminal cases in the parliament reflects a troubling trend in Indian politics. In 18^th Lok Sabha, close to 50% of elected members have registered criminal cases against them. If the lawmakers themselves don’t have regard for the law, it represents an unfortunate situation.
2. The destructive role of opposition: The role of opposition in a parliamentary democracy is crucial. It serves as a check on the ruling government, ensures accountability, promotes debate and provides alternative viewpoints. This is the reason that in Britain, opposition is also known as ‘her majesty’s opposition’. In India also there is statutory recognition to the post of LoP (Leader of opposition).

However, when opposition parties’ resort to a destructive role, it impacts the functioning of parliament. In an era of globalization era and developmental politics, parties do not have differences over policies. Thus, instead of opposition on certain policy matters, there is ‘opposition for sake of opposition’.

This leads to frequent disruptions of parliamentary work, boycotts, walk-outs, protests and chaos. This undermines dialogue, discussion and debate, undermining the very essence of democracy.

• Increasing Specialization: Over time, politics has become a highly professionalized business. Thus, the inadequacy of education and training in the operational mechanics of parliamentary polity and law making has adversely affected the performance of the legislators.
• Globalization: Further, globalization has also weakened the nation state and its rule making powers. Indirectly it has reduced the scope for autonomous policy by national parliaments.
• Other Reasons: Apart from above mentioned reasons, other factors also contribute to the weakening of Indian parliament from time to time. It includes judicial and executive overreach, a strong mandate to single party or sometimes a fractured mandate and coalition politics, defections, politicization of the post of speaker etc.

2.3 Suggested Reforms for Indian Parliament

Parliament is considered as a mirror of society. The picture of Indian parliament does not paint a good picture of civilizational state like India. There is an urgent need of reforms to ensure that parliament retains its legitimacy. Dr. in his book Reviewing the Constitution, suggests following reforms in Indian parliament:

1. Building a better image of Parliament: Parliament is the communication link between the people and the government. Deliberate and concerted efforts are needed also at the professional level to rebuild Parliament’s image as the supreme institution of the people. A better use of communication tools like the print and electronic media can play a vital role in building a healthy image of Parliament
2. Panchayats and Parliament: The role of M.P. must undergo change. Ideally, Members of Parliament are Members for the whole of India and should concern themselves basically with the national issues leaving the local problems to the care of Panchayats and Nagar Palikas. Schemes like MPLAD are bound to create role conflicts and tensions and actually prove distracting to these lawmakers.
3. Improving the quality of Members: A parliament would be what its members make of it. With politics becoming a highly professional business, should be understood as such. Institutionalized arrangements are, therefore necessary to provide the much-needed professional training and orientation to every newly elected Member irrespective of his ideological or party affiliations. The curriculum should include, among other things, adequate knowledge of the political system, the Constitution, the Rules of Procedure and Conduct of Business, the practices and precedents, mechanisms and modalities of the working of the Houses and the Parliamentary Committees, the do’s and don’ts for Members, the rules of parliamentary etiquette and the like. The emphasis should be on the practical know-how, the technicalities and the operational realities and the concrete situations and not the rule book.
4. Improving information supply: Information is power. For any effective surveillance over administration, Parliament needs information. Instead of depending almost entirely on published documents – which are almost always outdated and – parliament must build its own independent national information reservoir with a network of feeding and retrieval points.
5. Setting up a Constitution Committee: The responsibility of Parliament become much greater in the case of Constitution (Amendment) Bills. Thus, instead of the Constitution Amendments being presented to Parliament like ordinary pieces of legislation, if Parliament is associated right from the initial stages of formulation of proposals through the device of Constitutional Committee, this will bestow greater authority, legitimacy and wider acceptability to the reform proposals. This will also make it harder for judiciary, to thrash the constitutional amendments as violative of ‘basic structure’, undermining the legislature.
6. Parliamentary Control Over Borrowing: In India, there is no provision for a parliamentary scrutiny or control of public borrowing. Unlike U.K., in India, the Constitution and the laws place no limits on the borrowing powers of the Executive. This is a significant lacuna. For, public borrowing is a charge on the future generations and must be duly controlled.
7. Codifying Parliamentary Privileges: In a democratic society, any privileges for a section or class of the people are anachronistic, any undefined privileges are even more so. These privileges should not be allowed to be used in such a manner as to nullify themselves and become rights against the people. There is a strong case or codifying the privileges of parliament. This will remove the existing uncertainty and anxiety of the press and the people while judging the parliament.

While the above-mentioned reforms are crucial, it is important to note that parliamentary reforms, political party reforms, electoral reforms, judicial reforms, etc., all have to be taken up together in an integrated approach as part of the overall review of the working of our Constitution. No single reform can provide a miracle cure and no reforms should be affected in a hurry. We must proceed with utmost care and caution and evolve a national consensus on desirable changes.

2.4 Should India shift to presidential system?

The factors which were relevant at the time of independence to choose parliamentary system are still relevant. Except USA there is no other example where Presidential system remained democratic.

According to Ambedkar, “howsoever good a constitution is, it will not work if we as a people do not want it to work.” Ambedkar kept on insisting the need to adhere to constitutional morality. There is no guarantee that if presidential system comes, the problems are going to be resolved. Hence change in attitude rather change in institutions is needed.

It is important that necessary steps like capacity building of parliamentarians, depoliticization of the post of speaker is taken to restore the dignity. Parliamentary system is also a part of basic structure of the constitution and to change it, we will have to re-write the constitution.

However it is high time, we should take serious steps towards the devolution of powers at the local level and think about introducing some sort of direct democracy along with representative democracy.

3. Institution of Speaker

Position of a speaker is position of dignity. He is pivot of parliamentary system. In the words of Pandit Nehru, ‘Speaker represents the dignity of the house, freedom of the house. He represents nation, he is a symbol of nation’s liberty, dignity. His position should be occupied by men of outstanding ability and impartiality.’

3.1 Powers of the Institution of Speaker

Speaker comes next to president, vice-president and prime minister in the order of precedence. In parliamentary setup, the position of speaker is extremely powerful. His position is so important that he does not vacate the office on the dissolution of Lok Sabha, continue in office until the first meeting of newly constituted Lok Sabha.

The salaries and allowances of the speaker are charged on Consolidated Fund of India and are not subjected to voting. His conduct cannot be discussed, except on substantive motion for his removal.  He does not vote except in case of equality of votes. He has to vote (casting vote) according to the parliamentary conventions. He conducts the business of the house and is final interpreter of the constitution in the house.  He is ultimate authority with respect to the rules within the house.  Anything said by any member cannot go on record without his permission.

The speaker can expunge the text if he finds it unparliamentary.  He decides the breach of privilege of the house.  He constitutes all parliamentary committees and appoints chairpersons. Speaker himself is the chairman of 3 committees 1) Business advisory committee.  2) Rules committee.  3) General purpose committee. No one can be arrested from the premises of the house without his permission.

3.2 Critical evaluation of the role of speaker

Since the Indian system is modelled neither on purely British nor American system, there emerged a big gap in theory and practice, inviting controversies.

Case studies from India

1. Dr. Luis Proto Barbosa was the Speaker of the Goa Legislative Assembly. In 1990, while holding the Speaker’s position, Barbosa resigned from the Indian National Congress (INC) party. He, along with six other members, formed a new party called the “Goan People’s Party: and became the Chief Minister.
2. In 2015, Nabam Rebia, the Speaker of the Arunachal Pradesh Legislative Assembly, disqualified 16 MLAs from the ruling Indian National Congress (INC) under the Tenth Schedule of the Indian Constitution, (Anti-Defection Law). The disqualified MLAs argued that they had neither left the party nor defied any party directives. In July 2016, the Supreme Court of India delivered a landmark judgment, reinstating the disqualified MLAs. The Court ruled that the Speaker’s actions were unconstitutional and that the disqualification was not justified under the Tenth Schedule.

Opinion of page committee of UK

Even when speaker is a neutral position in UK, yet committee acknowledged that there can be a possibility of the speaker going partisan. Committee mentions that if speaker fails to maintain the neutrality, it sounds death knell of parliamentary democracy. Hence committee recommended that speaker should be made the member of house of Lords after retirement.

Conclusion

In order to arrest the death knell of parliamentary democracy, India should shift towards the British model.

4. Anti-defection Law

Defection is a problem in a parliamentary system. It creates political instability. If the members of ruling party defect, party may lose the majority. Defection also leads to corruption as ruling party can push the members of other party to defect in return of ministerial post. Defections are breach of trust with the voters. In India defection is such a huge problem that ‘Aaya Ram, Gaya Ram’ became the idiom of Indian politics.

4.1 Introduction of Anti-Defection Law in India.

52nd constitutional amendment, 1985, introduced anti-defection law. Rajeev Gandhi govt. came to power with absolute majority. However, he was unable to provide the leadership and within a short time, MPs started leaving the party. There was a fear that the ruling party will lose the majority. Hence anti-defection law was brought in the interest of the ruling party.

Consequently, anti-defection law contains loopholes which favor the ruling party. e.g. The ultimate power to determine the defection has been invested in the speaker and the speaker’s decision was kept beyond the scope of judicial review.

However, in Kihoto Hollohan case Supreme Court has declared paragraph 6 & 7, null and void because it takes away the power of judicial review, which is the basic structure. Supreme court pointed out that in India we cannot consider the post of speaker as neutral. 91st AA 2003 was introduced to address some of the loopholes. Thus, now the decision of speaker on the matter of defection is not final and is subject to judicial review.

4.2 Features of Anti-Defection Law in India.

It applies to the members of both the houses. Anti defection law applies to all members including speaker, deputy speaker, vice chairman. Anti-defection law applies to all the three categories

1. Members elected on the party seat. 
2. Nominated members. 
3. Independents.

Ground of Defection

1. For member elected on party sea –
   • If they vote against the whip issued by the party. Exemption: members are not disqualified if they have taken prior permission or if they have requested the party to condone their action within 15 days and party has condoned them.
   • If they voluntarily give up the membership of the party. Exemptions: 52nd AA banned individual defections but permitted defections in group. It mentions 2 situations where defection is allowed.
     1) Split – if 1/3rd of the members come out of the party, it is called split. 
     2) Merger – if 2/3rd of the members come out of the party.
     In both situations, defection was allowed. However, the 91st AA 2003 has ended the exception related to split and continued the exception meant for merger.
2. Defection in case of independents
   • Independents are not allowed to join any party as it will be fraud on voters.
3. Nominated members – nominated members are of two types. 
   • Members of a party at the time of nomination.  For these, similar rules will apply which apply in case of elected member
   • Not a member of any party at the time of nomination. Such a member has a freedom to join any party within 6 months from the date he assumes the office but not after the expiry. After six months, it will be a defection and such a person will be disqualified.
4. Case of speaker, vice chairman and deputy speaker
   • They can resign after elected to the post
   • In case they are removed or resigned from the post, they can join only their original party or remain independent.
   • They are not allowed to join any other party, it will result into defection.

4.3 Who will decide defection?

As per 52nd AA, Speaker will be ultimate authority to decide on the matter of defection. Speaker’s authority cannot be challenged even in courts.

However, in Kihoto Holohan case, Supreme Court held that the decision of the speaker comes within the scope of judicial review. As per Art 122, courts cannot intervene in the legislative proceedings but in above case Speaker’s action is not legislative, Speaker acts as a quasi-tribunal. Hence it comes under the scope of judicial review.

When the proceedings against speaker on the grounds of defection are taking place, speaker cannot disqualify the members e.g. case of Arunachal Pradesh. Nabam Rebia disqualified 16 members even when proceedings against him were going on.

View of Supreme Court – Speaker has been given power to strengthen democracy and not to stifle democracy.

Ravinayak case – Judiciary will not question the rules made by speaker or procedures but judiciary will question on the ground of ‘mala-fide’ intentions.

4.4 Way forward

Instead of making speaker as the final judge, it is better if the disqualification is determined by election commission like in case of disqualification of MPs and MLAs in other situations.

Anti defection law contradicts not only fundamental right but privileges of parliamentarians with respect to freedom of speech and expression. Law commission has suggested to restrict the use only in case of 1) Motion of thanks.  2) No confidence motion. 3) Confidence motion 4) Adjournment motion.

4.5 Other provision of 91st AA.

It brought split within the definition of defections.

It made the number of ministerial posts limited. 15% of total number of members.

It added Art 361B: A person disqualified under anti-defection law is also disqualified from being appointed to any office or remunerative post – under any government, Union or State. The disqualification applies till a) The term of the house for which he is disqualified.  b) Or till he gets re-elected.

5. Office of Profit

Constitution provides for the disqualifications for MPs and MLAs. Under Art 102. Disqualification on the ground of ‘office of profit’ is the first disqualification mentioned.

5.1 Logic behind it

Separation of powers or to avoid conflict of interest. Parliament is an institution of establishing the accountability of executive. Executive can make inducements to the MPs or MLAs by offering them remunerative posts or such posts which are wielding power. Thus, it will destroy the separation of powers and the role of parliamentarians to ensure accountability.

Another logic is that it is not possible for a same person to be present at two places at the same time. Member of Parliament should give ultimate priority to his responsibilities as a parliamentarian. That is why they even have certain privileges e.g. MPs cannot be even arrested 40 days before and after the session of Parliament so that the work of parliament is not be affected.

5.2 Problem in India

Executive has been appointing MPs and MLAs on such posts but they are not being disqualified.

Since 91st AA, which limits ministerial posts, it has become a way to bypass 91st AA by offering such posts like parliamentary secretaries which are not technically ministerial posts.

Another problem is, lot of arbitrariness prevails. In context of disqualifying, there is a huge variation from state to state. e.g. in 2108, parliamentary secretaries appointed by AAP govt. in Delhi were disqualified, whereas many other states continue to have posts but have not been disqualified.

5.3 Who decides disqualification?

President who shall act according to the opinion of Election Commission.

This leads to arbitrary manner of exercise and puts question-mark on even the independence of the Election Commission.

5.4 Root Cause of the Problem

1] Constitution does not define the office of profit. However, constitution exempts certain posts like the ministerial posts from subjected to disqualification on the ground of office of profit. Because in India ministers are chosen from among the members of parliament. 

2] The existing law is inadequate.

Pandit Thakurdas Bhargav committee repealed earlier laws (1950,51 & 53 act) and gave a new act – Prevention of Disqualification Act 1959. This act contains two provisions. 1) It suggests that if any office gives only compensatory allowance, it will not be treated as ‘office of profit’.  2) The act mentions number of offices which are exempted.

5.5 Impact of Above Situation

In the absence of clear law, it has created scope for judicial interventions.  2| 1959 Act has been continuously amended, in 1993, 2000, 2006, 2013. By amendments more and more posts are brought under the act.

Now and then the controversy related to office of profit keep on emerging. Governments exempt the office with retrospective effect. It is a paradox that judiciary upheld the validity of putting the offices in the list with retrospective effect.

Almost every office is exempted that the condition of disqualification on this ground, itself has become irrelevant.

There is a need to either bring a comprehensive law and it should not have the implementation with retrospective effect or do away with the provision itself.

Does it make sense in case of India?

The disqualification on the ground makes sense only in presidential form of govt. Because of the principle of separation of powers. Art 1(6) of US constitution strictly prohibits the members of Congress from accepting any inducements.

In India, parliamentary system exists. In parliamentary system, parliament holding executive accountable is a farce. The party which has majority in the house forms the govt. Prime Minister is the strongest elected head in the world. He is a leader of both – legislature and executive. It would be naive to think that the private members of the ruling party (which are not in govt.), and which are offered such offices, will be holding the members of their own party in government, accountable.

Office of profit as a disqualification is also irrelevant in light of anti-defection law. Members of the party cannot vote against the party.

Is the office of profit as a disqualification exists in Britain, which is also a parliamentary system?

Officially yes. But practically no. There is a historical reason to put it as a disqualification in Britain. It emerged as a result of the tussle going on between King and Parliamentarians. When King used to have powers, through inducements King was trying to bring MPs to his side. Now King is just a constitutional head. Even without written constitution Britain follows parliamentary culture. (The parliament act of 1707 put restrictions on MPs accepting any remuneration from the crown.) Hence in case of India also either the number of offices exempted have to be reduced or abolish the provision itself. We should not ignore the practical politics, for theoretical niceties.

5.6 How Office of Profit is Determined?

Since law is inadequate, it is determined by judiciary from time to time. Judiciary has adopted 5 broad principles.

1) There has to be an office. 

2) It should be office of profit. 

3) It should be under govt. 

4) Person should have held the office. 

5) Office is not exempted by the parliament.

Ashokkumar Bhattacharya vs Ajoy Biswas case 1985. Judiciary will interpret the office based on facts and circumstances in each case. It will take practical approach rather than strict legalistic approach. (Pedantic approach – literal/strict approach).

Shatrucharla Chandrashekhar Raju Vs Vyricharla Pradeepkumar Dev case 1992

Judiciary will see whether appointing authority is govt, whether govt. has power to terminate, whether govt. determines remuneration, whether source of remuneration is public purse, whether govt. controls the office with respect to the manner in which duties of the office are to be performed, whether the office brings person under the influence of govt. by patronage.

All factors need not to exist simultaneously. Which factor is relevant in which case will be determined by judiciary.

5.7 Other Important Judgements

Jaya Bachhan Case – Whether person has actually obtained any monetary compensation does not matter. It is enough if office is capable of yielding remuneration. However, a person acquires a contract for the work which govt. ordinarily performs will not be treated as office of profit like acquiring gas agency.

Kanta Kathuria Case – Office should be independent of the holder. Hence the office of public prosecutor will not be office of profit.

Shibu Soren Case – Whether compensation bring person under the influence of govt. will be seen.

Divya Prakash Case – Even when appointment is honorary, it can be a office of profit.

Since the controversies keep on emerging, parliament has set up a joint committee to continuously scrutinize. Committee applies two criteria. 1) Remuneration is more than compensatory allowance.  2) It brings person under influence and patronage.

6. Parliamentary Privileges

Privileges are the special rights which are available to few. Privileges are given to the parliamentarians or legislators in all democracies so that they can perform their responsibilities efficiently without fear. Privileges represent the dignity of the house. Hence house is given power to punish the person in case of ‘breach of privilege’. It is treated as contempt of the house.

One of the most universally available privilege is freedom of speech and expression. One of the strongest traditions of this privilege is in USA. In USA, there is concept of filibustering. It is a privilege of senators. Senators engaging in a filibuster can speak for hours, days, or even weeks on end. There is no strict time limit on how long a senator can speak.

It is an extreme example of the privilege of the senator. In India Art 105 and 194 provides for the privileges. It mentions
1) Freedom of speech and expression. 
2) Exemption from liability with respect to anything said or any proceedings or any vote given in parliament. e.g. There cannot be any case of defamation against the members for what they said in the house. Similarly, nobody will be punished for publishing any report under the authority of the house. 
3) Art 122 Prohibits Judiciary from intervention in the proceedings of parliament.

Constitution does not give the exhaustive list, leaves it on the parliament to define its own privileges. Till parliament does not codify, the privileges found in Britain’s house of commons will be treated as applicable.

Privileges are available to MPs as an individual, houses collectively, to the committees and its members.

Why Codification is Needed?

This issue was debated in the constituent assembly and Dr. Rajendra Prasad emphasized on the need to codify parliamentary privileges as he was skeptical that they will never be codified.  Lord Cairns once remarked that ‘the most important privilege of the parliamentarians is not to codify privileges’.

It creates huge uncertainty with respect to the exercise of freedom of speech and expression of ordinary persons but specifically over the freedom of press. On number of occasions, journalists have been punished for the breach of privilege in an arbitrary manner just for criticizing the policies of govt. e.g. Recently activist Abhijit-Iyer Mitra was arrested for his derogatory remarks on Odisha, under contempt of Odisha Assembly.

Why it is Important?

Press is known as ‘fourth estate’.  It is absolutely essential that freedom of press exist to protect democracy. Since privileges are not codified, there is no clarity over what journalists can write or cannot. It also results into involvement of the judiciary now and then in the decision of the house because the power is exercised in an arbitrary manner.

It is a big challenge for judiciary because on one hand it is a protector of fundamental rights and on the other hand, it has to give recognition to the provisions of the constitution.

Relationship Between Privileges and FRs.

Whenever there is a contradiction between two provisions of the constitution, judiciary goes for ‘harmonious construction’ approach. Approach of judiciary is changing.

1. In Searchlight case (aka MSM Sharma Vs SK Sinha case) 1959. SC has upheld the primacy of privileges over FRs.
2. In Keshavsingh case, court opined that the verdict in Searchlight case is not a general norm. Fundamental rights can be given primacy. However, all rights will not have primacy. Art 21 will have primacy but Art 19 does not have.
3. In Raja Rampal Vs Lok Sabha speaker 2007 case, Supreme Court remarked that Art 20 & 21 both will have primacy but not Art 19.

It would be in the interest of democracy if privileges are codified

1. It will achieve balance between FRs and Privileges.
2. It will restore the dignity of house as judiciary will not have scope for intervention. Privileges in India without codification is like following the British principle of sovereignty of parliament whereas in India constitution is supreme.
3. MPs are representatives of the people, and cannot claim more power from the people themselves.
4. In USA privileges are not codified but there is no system of punishment for the breach of privilege whereas in India journalists have been imprisoned for years together.
5. Recently Australia has codified the privileges.
6. Case of Britain: In Britain privileges were introduced with the purpose. The tussle between King and Parliament. Hence parliament asserted 1) Privilege of parliamentarians to speak against the king.  2) It became the privilege that no person will be arrested from the premises of the house without speaker’s permission. 3) At present in Britain even uttering defamatory statements against the house is not treated as breach of privilege. The last person to be imprisoned was Charles Bradlaugh in 1880. However, in India, even in 2018 journalists were imprisoned.

7. Committee system in India

In USA it is said that Congress in session is Congress at display whereas Congress in Committee is Congress at work. The real legislative business takes place in the committees. This is so since parliament meets for limited time whereas committees continue to work throughout the year.

Committees can take the specialist view on a particular issue. Political parties will not cooperate on the floor of the house because of political reasons but they can cooperate in the committee because it does not work under the glare of media. Further, committees can involve the experts and stakeholders for wider consultations.

The strongest committee system in practice is in USA. In USA, the bills can go directly to the committees even before introduction in the house. The life of bill can end in the committee itself, there is no need to send the bill back to the house. (Pigeon Hole practice).

In India, committee system does exist but it does not work efficiently. In India it is not necessary to refer the bill to the committee. The number of bills referred to the committee have come down considerably. According to the report of PRS legislative research. In 14^th Lok Sabha 60% of bill were referred to committees. The percentage was 71 % in 15^th and dropped to 28% and 16% in 16^th and 17^th Lok Sabha.

Another paradox is that the recommendations are either nor tabled and thus not even discussed. Even when discussed, they are not implemented. The committee system started in India in 1921 when public account committee was setup.  Estimate committee was setup in 1950. Since 1993, department related standing committees have been set up. With respect to legislative business, there are 4 types of committees. 1| Financial.  2| Departmental standing committees.  3| Select committees – means ad hoc committees which are meant to scrutinize the bills. (most imp committee).  4| Rules committee.

In India there is a considerable decline in the attendance of the members. Some of the weaknesses of committee system have been mentioned by Pratap Bhanu Mehta and Devesh Kapoor as following. 

1. They suffer the general weaknesses of parliament in India.
2. There is lack of capacity among parliamentarians.
3. Committee members are elected only for a year. This results in wastage of experience gained.
4. The members are not given any additional remuneration so they have no motivation.
5. There is lack of qualitative research support.
6. Committee recommendations are neither discussed nor implemented.
7. Ministers are not the part of the committee and so they are neither involved nor are they supportive.

The committee system is indispensable to foster informed decision-making, to ensure government accountability and to enhance legislative efficiency. Therefore, ensuring the effective functioning of committees remains crucial for the overall effectiveness and credibility of India’s parliamentary democracy.