The Vice-President has
called an all-party meeting to discuss changes in Rajya Sabha rules which will facilitate the House to function smoothly. As I have argued in
this article in the Seminar, obstruction in our Houses of Parliament are already rule-violating (unlike the filibuster in the United States, which is tolerated by the rules of proceedings). Parliamentary rules also vest the Chair with a significant (some might say, even draconian) amount of power to enforce them.
The reason why these rules have remained unenforced is that they rely on a politically weak office of the Chairperson/Speaker for enforcement. Every attempt to do so requires the Chair to identify the offending MPs, and inevitable invites allegations of partisanship. Enforcement attempts thus become yet another reason for disruption, and are completely counter-productive.
The Seminar article also outlines the very heavy price our democracy has been paying because of frequent parliamentary disruption. In particular, the most consultative and democratic of institutions has been paralysed, and power has shifted considerably to the less accountable parts of the state–the judiciary and the Executive (some have noticed the phenomenon in the United States too).
Of course, part of the solution to the problem of dysfunctional legislatures is political. Our political culture has come to accept obstruction as normal, and not just by the Opposition. Even the governing party has used it to escape legislative scrutiny. However, some clever rules may aid the process of changing this culture. I proposed certain strategies in the Seminar article, excerpted below. At least some of them can be achieved by simple amendments to parliamentary rules or the Salary, Allowances, and Pension of Members of Parliament Act 1954.
There are two strategies that need to be pursued simultaneously to deal with the problem of plenary bottleneck. The first strategy is to reduce the number of motions that require plenary time. Constitutional provisions and the value of democracy impose limits on how far this strategy can be employed. Primary legislation must be enacted in plenary sessions. However, the role of legislative committees – which tend to be more productive than plenary sessions – in examining secondary legislation (rules) proposed by the executive can be strengthened. Further, much plenary time is wasted in determining what procedure should be followed to debate non-legislative accountability-seeking motions.
For example, the winter session of the Lok Sabha in 2012 lost several working days due to obstruction over whether the legislative debate on the executive’s decision to allow foreign investment in retail should take place under a rule which allows voting or one which doesn’t. It will be much better to adopt a standard rule. It could be provided that all accountability motions should be amenable to voting, at least in the Lok Sabha, where the government can be expected to be confident of its majority – or face political embarrassment when it doesn’t. Alternatively, a multiparty parliamentary committee could be empowered to conclusively determine the matter before the start of parliamentary sessions.
A second strategy is to deal with obstructions directly and increase available plenary time. Since obstruction is already rule violating, creating new rules to forbid it will be pointless. For the same reason, making rules allowing majorities to surmount it will not be any good either. The only way to deal with obstruction is to make it costly. The political costs for the obstructers will rise only when at least some major parties become thoroughly non-obstructionist, support the reforms outlined below, and seek political distinction on that basis. The legal costs will increase only if Speakers start enforcing the rules that prohibit obstruction. For the politically weak office of the Speaker, it is hard enough to suspend the odd obstructing MP. Mass suspensions are practically impossible. Effective costs will have to be automatic (i.e. not require any action on the part of the Speaker) and collective (costs targeted at obstructing members will necessarily require prior identification by the Speaker, and therefore likely to be ineffective).
Withholding the daily allowance of all legislators on days when a House is obstructed is one way to impose an automatic and collective, if relatively small, cost. Another option is to require that every House must sit for at least a hundred ‘qualifying’ days every year – a day qualifies only if a minimum of five obstruction free hours were spent on legitimate business. If time wasted during obstruction doesn’t count, it will make obstruction costly enough to become sufficiently unattractive – except perhaps in the rarest of rare cases that Arun Jaitley defends. Together, these collective costs may get our legislatures working again.
Tarunabh, I really enjoyed your piece and your creative suggestions at the end. Just to push you a little more. You write:
"Withholding the daily allowance of all legislators on days when a House is obstructed is one way to impose an automatic and collective, if relatively small, cost. Another option is to require that every House must sit for at least a hundred ‘qualifying’ days every year – a day qualifies only if a minimum of five obstruction free hours were spent on legitimate business. If time wasted during obstruction doesn’t count, it will make obstruction costly enough to become sufficiently unattractive – except perhaps in the rarest of rare cases that Arun Jaitley defends."
Although I haven't thought this through the idea does have intuitive appeal. However, who would make this determination? It strikes me the first suggestion about docking pay isn't a significant enough remedy when MPs really aren't paid that much relatively anyway and will end up hurting those MPs who have fewer financial resources than others in a pretty arbitrary manner. In the second, it would seem that the government would want the ability to determine if there had been a hundred qualifying days are not. Clearly obstructionism has gone too far in India (and many other democracies in the world). That said, delay by the minority party is a legitimate way to create a check on an unbridled majority – a way to help create debate in the media, sow doubts amongst coalition partners, raise new information to light, etc.
Thanks Nick. You are right about these doubts. I think only a model where the penalty is automatic and collective is likely to work, but I haven't thought through the details myself. Hence half-baked possible suggestions crammed into a small last para of the article. Having said that, I think the automatic trigger should not be too difficult to determine: surely, the mere fact of any adjournment before the end of the day's proceedings which is not due to any of the acceptable causes (lunch break, end of business, etc) can be an automatic trigger (either for docking allowance, or for not counting it as a qualifying day etc). Obviously, someone needs to look closely at parliamentary proceedings to determine what causes of adjournment are acceptable. All else may be deemed to be due to obstruction.
So, the automatic part is easy (if the above is true). The difficulty is thinking of the appropriate collective penalty which will bite (I agree there will be innocent sufferers, but that is inherent in the idea of collective penalty). At the moment, those conscientious MPs are unable to function in any case.
Also, you are absolutely right that the Opposition can use delay legitimately. But that has to be done within the rules of the game. Delay by making a speech, or several speeches – persuade if you can. But not by obstruction. I actually think that the Opposition is the biggest loser because of obstruction, because it just empowers the Executive.
I suppose my concern is that it might be difficult to determine what kinds of adjournments are acceptable – or even if the types can be determined who then determines whether the instant case falls within the type. My difficulty in this might just be coming from not knowing the plausible scenarios in enough detail. I do think someone should look into this more to see if it would be practically feasible (unsurprisingly when it comes to Parliamentary procedure the devil might be in the details).
Also, I think it is only in some cases that the Opposition loses in terms of obstructionism. I think someone could apply game theory to model this out more precisely. Just because the Executive is empowered doesn't mean the Opposition loses (especially if elections are coming). It more has to do with who they believe voters will blame for the non-functioning of Parliament (and the Government) that might result from obstructionism.
I see your point – even 'automatic' penalty will need some kind of determination – perhaps an independent insulated body like the proposed ombudsman or even our permanent election commission? Asking courts to get involved will be a bad idea, and politicians cannot be trusted to regulate themselves in this regard.
On the daily allowance point, which incidentally is Rs 2000 per day per MP (so quite a significant overall figure), there is additionally a point of principle that if you do not work, you do not get paid. It may not be penal enough to act as deterrence, but perhaps justified in terms of fair use of public funds?