Parliament worked overtime on the last two days of the winter session to approve a change in our constitution. The bill to do so was introduced in the Lok Sabha on January 7 and passed by it on the same day. Rajya Sabha sat for an extra day to discuss the bill and gave its consent to it on Wednesday. From the time of its introduction, it took Parliament nearly 15 hours to pass the Constitution (One Hundred and Twenty Fourth) Amendment Bill of 2019. During the last decade, it is the least amount of time that Parliament devoted to scrutinising a significant amendment to the constitution.
At the time of the framing of the constitution, Pandit Nehru remarked that: "While we want this Constitution to be as solid and as permanent a structure as we can make it, nevertheless there is no permanence in Constitutions. There should be a certain flexibility. If you make anything rigid and permanent, you stop a nation’s growth, the growth of a living, vital, organic people."
Ring-fencing The Foundation
The constituent assembly had the power to amend the constitution by a simple majority. The framers provided a safeguard for future parliaments from altering our founding document. They specified that any such change would require a majority of not less than two-thirds of the members of each House present and voting and a majority of the total membership of each House.
Dr B R Ambedkar explained this safeguard. He observed, "The future Parliament if it met as Constituent Assembly, its members will be acting as partisans seeking to carry amendments to the Constitution to facilitate the passing of party measures which they have failed to get through Parliament by reason of some Article of the Constitution which has acted as an obstacle in their way. Parliament will have an axe to grind while the Constituent Assembly has none. That is the difference between the Constituent Assembly and the future Parliament. That explains why the Constituent Assembly though elected on limited franchise can be trusted to pass the Constitution by simple majority and why the Parliament though elected on adult suffrage cannot be trusted with the same power to amend it."
Parliament operationalised the constitutional safeguard through its rules of procedure. These rules require a mandatory counting of votes for bills amending the constitution. This numerical safeguard only works if there are differences between political parties on an issue. When there is a political consensus, an amendment to the constitution sails through Parliament, like it did in this case.
Parliament cannot be viewed narrowly as being tasked with stamping approval to laws agreed to by political parties. Our constitution casts a higher responsibility on Parliament. It makes the institution responsible for scrutinising legislative proposals before enacting them as laws for the entire country.
In 1951, the constitution was amended for the first time. Before discussing the amending bill on the floor of Parliament, it a committee of 20 MPs was tasked with scrutinising it. The committee was given five days to examine the bill, and it started its deliberations over a weekend and submitted its report, which included six dissent notes.
Over the years parliamentary committees have rigorously examined hundreds of legislative proposals referred to them. Their closed-door deliberations have allowed them to set aside political positions and focus on the legal and technical nuances of a bill. In the last two and a half decades the committee system in parliament has become more formalised, focussed and better staffed.
It has allowed Parliament to go into the details of legislation, identify the challenges with a bill, get insights from the government, citizens and experts before making their recommendations. The committees of parliament have given the institution the teeth to scrutinise legislation brought before it effectively. The last few constitutional amendments related to OBC commission, Goods and Services Tax, exchange of enclaves and the national judicial appointments commission were all examined by parliamentary committees.
Takes Times, But So What?
The process of detailed examination of a bill by a committee takes time. And rightly so because inadequate scrutiny by Parliament could lead to half-baked legislation. Such laws are lost opportunities and may not have the impact as envisaged by Parliament. But when governments want to pass legislation quickly, they want to bypass the scrutiny of parliamentary committees. In the 16th Lok Sabha, fewer Bills (26 percent) have been referred to committees as compared to the 15th Lok Sabha (71 percent) and the 14th Lok Sabha (60 percent).
The decreasing role of committees in our legislative process is because the rules of Parliament do not mandate compulsorily sending of bills to committees for scrutiny. Very often, it is individual MPs who demand that committees examine bills. Like it happened yesterday during the passage of the 124 constitutional amendment bill.
Rajya Sabha MP Kanimozhi moved the motion for referring the bill to the committee. But in the absence of support from other political parties, the proposal was unsuccessful.
This lack of in-depth scrutiny of laws by Parliament is one of the biggest challenges for our democracy. It allows our lawmaking process malleable to the pressures of government expediency and politics. In a well functioning democracy, the process of lawmaking and scrutiny should be sacrosanct. Neither the government nor the political parties or the institution itself should have the power to bypass thorough examination of a bill by Parliament. In the absence of ring-fencing of legislative processes, the gap between laws made by Parliament and their implementation by the government will keep increasing.
Chakshu Roy is Head of Legislative and Civic Engagement, PRS Legislative Research.