Friday, July 15, 2011

Supremacy of Parliament

In a provocative piece, C.V.Madhukar asks whether the Indian Parliament is really supreme as a counter to those who question Anna Hazare's politics. To substantiate his claim that Parliamentarians are responsible for not treating Parliament as supreme, Madhukar lists six grounds. These are: One, Bills are passed without discussion; Two, there is no demand from MPs for a deeper consultative pre-legislative process; Three, MPs do not ask Government why the Standing Committee recommendations on Bills referred to it are not completely accepted; Four, Members show little interest in Private Members' Bills, and very little time is devoted to their discussion; Five, Anti-Defection Law reduces MPs to mere head-counts, and most MPs simply endorse their parties' positions on policy matters, fearing disqualification, thus making their participation in the law-making process a farce; and Six, power to convene Parliament remains with the Government, rather than the MPs themselves, enabling the Government to delay convening it, so that Parliament meets only for a few days.

I have a small quarrel over the implicit assumption in this piece. The assumption is that Anna Hazare's politics is popular because Parliament, in practice, is not supreme. Let us, for the sake of argument, imagine that Madhukar's six grounds do not exist. Would it have guaranteed the passage of an effective Lokpal Bill much earlier than now? I doubt. Would it have at least limited Anna Hazare's following? I again doubt.

I disagree with Madhukar on the substantive grounds too. I agree that Parliament passes many Bills without discussion. How does it make it less supreme?Secondly, if MPs consider themselves supreme, why should they bother about the need for a mechanism to ensure pre-legislative consultative process? Thirdly,if Parliament is supreme, how a Standing Committee, which obviously enjoys less stature than the House itself, can expect that all its recommendations must be accepted by Parliament? Grounds 4,5 and 6 completely overlook the centrality of political parties in Indian Parliament. Grounds 4, 5 and 6 are not new phenomena - they have been characteristics of Indian Parliament right from the beginning. Does it suggest Indian Parliament has never been supreme? Then the argument that Parliament supremacy has been eroded in recent times loses its strength. No doubt, our Parliament meets for less number of days in a year than what it used to earlier. But would frequent meeting alone make Parliament more supreme than what it is now? I think Parliament's supremacy is understood in terms of the functions it performs when it meets, rather than X number of meetings that it holds.


Pranav Sachdeva said...

the questions to be asked is this: r we being ruled by parliamnet? or r v being ruled by a few political parties and status quoist administration? if it is d latter, then parliament has lost much of its effectiveness

vikramhegde said...

I don't feel Mr. Madhukar is trying to say anything about Anna Hazare's method being just. It seemed to me that he was just using that as the context in which this issue of supremacy of parliament is raised.

Regarding the parliament not being supreme, I think Jennings quotes Lord Hailsham who says Britain has no legislature but only an "executature". This has been more true in India's case.

On whether has the parliament never been supreme or has it's power eroded now, I would say that the power of the parliament has increased since the advent of the coalition era. In the Nehruvian era a small section of the congress (with a presence in parliament) was unhappy with some policy they wouldn't have been able to do anything about it. Today this same constituency is probably represented by some regional party which can actually leverage its strength in parliament for it's purpose. The parliament as a whole today consists of several such groups who leverage their numbers. One could say that the negotiation is between parties and the supremacy of one party which existed has now broken down into the supremacy of parties. But each party's pull at the table is determined by the number of MPs so value of the parties has increased in this manner.

Bills that get passed without discussion and the fact (mentioned in original article) that MPs don't get to properly study the drafts clearly point to the will of the ruling dispensation being carried out without any questions asked. More than the anti-defection rule it is probably the rigidity of the party structure that maintains such party supremacy rather than parliament supremacy.

The blog post also mentions the centrality of political parties in parliament. Is there any such centrality intended? The original constitution has no mention of political parties and the intention of the framers (tea party alert :P) seems to have been to not give the parties a central role.

Lastly I think by pointing out the extremely low number of meetings Madhukar is implying that the parliament is performing lesser functions and is thus losing supremacy.

Prateek Andharia said...

CV Madhukar's piece uses a terminology of 'supremacy', which might, in several ways be misleading. As countless amendments to laws that are a knee-jerk reaction to Court decisions will tell you, Parliament is most definitely supreme in the positivistic sense.

What he raises, and I feel it is a significant point, is that Parliament's legitimacy is eroding. It might be supreme, but several of its legislations are viewed with both disdain and disgust by the people. Baxi in fact paints it as a larger crisis of legitimacy of the law rather than just Parliament.

The consequence is a lack of respect of the law and an inhibition of the already nascent spirit of constitutionalism in the country. That concern is one most alive and worthy of discussion. All the instances of intra-Parliament lack of due diligence also pont to this lack of legitimacy.

Substance over terminology, Please?

Karamvir S. Dahiya said...

Indian prime minister, Man Mohan Singh [Dr.], avoiding moral and political responsibility, pooh- poohs Anna Hazarede with a statement loaded with ignorance that Hazare is eroding Parliament Supremacy. On the contrary, Hazare is doing just the opposite. Hazare, a Man of common of men, leader of ethics, heroically, is trying to save the parliament from being sullied and belittled by arrogant Executive branch of the Country. Parliament’s distinct character and efficacy has been debilitated to a level that time has come for the three organs of government become accountable to Indian citizens. Let us just look at source of Indian law. Parliament powers to legislate is not unbridled, it is subjected to limits imposed by Article 245(1)—this power is “subject to the provisions of the constitution.” Powers are clearly limited by the constitution. Legislation in contravention to the Constitutionally granted enumerated subjects is void. Within the limiting provisions of the constitution, Parliament exercises supreme power. Parliament cannot be dictated to enact a particular legislation. Untion of India v. Prakash P. Hinduja, (2003) 6 SCC 195: AIR 2003, S.C., 2612. However parliament cannot do what majority of the people oppose. The precariousness in Hazare case is, the Cabinet (target of corruption), holds the majority in the parliament and thus is in control. This government determines the agenda of the House and practically controls the outcome. Hazare is asking these Cabinet members to respect the parliament and do their homework, be accountable to the country and its people. Indian Prime Minister makes very inapposite remarks and usually fall short of any standard legal or political. Karamvir S. Dahiya