The upper house is a ‘safety valve against electoral majoritarianism’, and the opposition must have a strategy in place to ensure it performs this function.
The NDA is inching towards a majority in the Rajya Sabha. By the end of 2021, it is likely to attain the magic number of 124. Recent defections and wins have increased the BJP’s strength in the upper house to 76, while the NDA’s total is at 115, leaving it only six MPs short of the halfway mark of the current strength of 241 in the house.
The situation will change further in 2020, when 72 members will retire, 15 of whom are from the Congress. It will be hard for the Congress to retain those seats. In this year, Bihar will also elect a new assembly and have considerable impact on the seats in the upper house.
The composition of this house is important considering the obstacles faced by NDA-I in passing controversial legislations like the Triple Talaq Bill and the Citizenship Amendment Bill.
The Narendra Modi government claims that the last Lok Sabha passed an unprecedented number of Bills. In the upper house’s current session, the BJP will not find it hard to get Bills passed if it garners support from non-UPA parties like the TRS, BJD and YSRCP.
Though the NDA does not immediately need to reach the halfway mark to have its way in the upper house, the clock is ticking for the opposition.
Quick passage of Bills and parliamentary efficiency
‘Parliamentary efficiency’, if defined as quick passage of Bills, does not necessarily ensure high quality of legislation. The BJP, which came to power with the slogan “minimum government, maximum governance”, inversed this mantra, as can be seen from the number of Bills it introduced. The 16th Lok Sabha passed 133 Bills and docked in a high level of ‘efficiency’ due to the number of business hours. In this period, 45 ordinances were also promulgated, many of which were re-promulgated despite the Supreme Court holding the practice to be a fraud on the Constitution.
Hence, it would be a classic case of fallacious equivalence to attribute quick passage to parliamentary efficiency, as the quality of the legislations suffered due to a lack of deliberative discussions. According to a report from PRS, the BJP government’s insistence on passing Bills curtailed the time spent by the houses on the question hour (13%), short duration discussions (10%) and calling attention motions (0.7%). The legislative business hours are usually dominated by the government’s hustle to pass a Bill. In 2018, 83% budget and 100% demands were guillotined without discussion. The budget session was the least productive in a decade and was riddled with protests and adjournments.
‘Parliamentary efficiency’, if defined as quick passage of Bills, does not necessarily ensure high quality of legislation. Photo: PTI/Files
Bicameral legislature: A safety valve
Even as Lok Sabha MP Asaduddin Owaisi highlighted the importance of parliamentary scrutiny in his speech after the speaker’s election and appealed for safeguarding this essential feature of separation of power, the crucial importance of Rajya Sabha in ensuring parliamentary scrutiny and protecting values of federalism must be acknowledged.
As Justice D.Y. Chandrachud exposited in his dissenting judgement in the case relating to constitutionality of the Aadhaar Act, 2016, “As a revising chamber, the Constitution makers envisioned that it will protect the values of the Constitution, even if it is against the popular will. The Rajya Sabha is a symbol against majoritarianism.”
While concerns about the introduction of key legislations as money Bills to bypass the Rajya Sabha were raised, this judgment expounds on the importance of bicameralism as a principle in a constitutional democracy because it acts as a check against the abuse of power by constitutional means or its use in an oppressive manner.
As a subset of the constitutional principle of division of power, bicameralism is mainly a safeguard against the abuse of the constitutional and political process because a bicameral national parliament can hold the government accountable. As stated by the constitution bench of the Supreme Court in Kuldip Nayar v Union of India, the Rajya Sabha acts as a check on hasty and ill-conceived legislation, providing an opportunity for scrutiny of legislative business.
Justice Chandrachud had further analysed:
“The role of the Rajya Sabha is intrinsic to ensuring executive accountability and to preserving a balance of power. Both the existence and the role of the Rajya Sabha constitute a part of the basic structure of the Constitution.”
Hence, the Rajya Sabha has a vital responsibility in nation building, as the dialogue between the two houses of parliament helps to address disputes from divergent perspectives. For instance, the Mines and Minerals (Development and Regulation) Amendment Bill, 2015, was passed by the Lok Sabha and on the demands of a united opposition in the Rajya Sabha, sent to a Select Committee. The recommendations of the latter were accepted before the Bill was passed.
The government in its last tenure bypassed the Rajya Sabha by passing crucial amendments through the Money bill route. The Aadhaar (Targeted Delivery of Financial and Other subsidies, Benefits and Services) Bill, 2016, was declared a money Bill, a move that prevented any amendments to the Bill in the Rajya Sabha. This move was designed because the NDA did not enjoy a majority in the upper house.
In January 2018, The Industrial Employment (Standing orders) Central (Amendment) Rules, 2018, which allows fixed term employment giving powers to employers to terminate a contract with a notice period of barely two weeks was surreptitiously included in the finance Bill and passed in the budget session. The Bill was being opposed by trade unions and the government has violated the International Labour Organisation’s Convention 144, which mandates consultations with unions before modifying labour laws.
Need to counter contentious legislations
Several Bills enlisted in the current session of parliament endanger democratic values. Opposition parties, including the Congress and TMC, have lambasted these Bills outside parliament. But the challenge of defeating them in parliament will continue to grow.
The Surrogacy (Regulation) Bill, 2016 sought to ban commercial surrogacy for married couples, members of the LGBTQ community and live-in couples. The Bill makes surrogacy exclusively doable only through relatives. It was seen as an “anti-civil rights, stone age and stringent Bill” by progressive activists, lawyers as well as the opposition. However, they could do little to stop the Bill from passing in the Lok Sabha. It only lapsed in the Rajya Sabha later and is set to be reintroduced this session.
The Citizenship (Amendment) Bill, 2016 was firmly opposed by the TMC, SP, Congress and CPI(M) and the parties submitted a dissent note to the Joint Parliamentary Committee report on the controversial Bill. It was nonetheless passed in the Lok Sabha and will be introduced in the Rajya Sabha in this session.
In December 18, when the Triple Talaq Bill was tabled, opposition parties walked out. The major concern was the criminalisation of a civil offence (divorce). The government disposed the demand to send the Bill to a committee for a review and the Bill was passed in the Lok Sabha. The biggest hurdle for the Bill’s passage was the government’s minority in the Rajya Sabha. This year, following an ordinance that was issued in February, a renewed Bill – without major changes – has been tabled.
The Aadhaar and Other Laws (Amendment) ordinance, and later a Bill (2019), has overturned the Supreme Court’s judgment preventing commercial exploitation of Aadhar data. It impinges on the right to privacy of citizens, but that has not stopped the government from using its majority to pass the Bill.
Clearly, the opposition’s social media positioning has negligible value within parliament. The parliament has become a numbers game, with the speaker/chairman clearly not being non-partisan heads of the two houses.
A calibrated opposition strategy
As the NDA approaches majority in the Rajya Sabha, the opposition must ally with nominated, independent and non-UPA party MPs in advance. A strong opposition can be ensured through regular meeting between the parliamentary party leaders (non-aligned and UPA) at the beginning of and during each session. The idea is to claim the time allotted to legislative business through active interventions.
Rule 176 (Short duration discussion), Calling Attention (Rule 180) and half hour discussions (Rule 60(2)) should be filed more frequently by the opposition MPs. Rules which require signatures from other MPs serves as an opportunity for the opposition (all MPs who are critical of the government) to unite on several issues and extend the stance of the party during the voting over crucial Bills.
Division during voting on Bills should be called for more often by the MPs in both the houses, so that legislations are not passed amidst the chaos. A strong strategy will involve collusions between non-aligned parties with the largest party in opposition and well mediated positions over issues, leaving no opportunity of referring Bills to committees unutilised. The opposition would be well-advised to take cue from its own recent successes to ensure amendments to the Motion of Thanks to the president’s address.
The opposition cannot enjoy the liberty of absence from the upper house or of impromptu thinking. Staging walkouts during controversial Bill is a strategy of the past. It must come prepared every day to the parliament with an aim to strengthen democracy and prevent the majority from bulldozing the voice of the religious, socio-political and economic minorities, which face the burgeoning threat of marginalisation and disenfranchisement.
Kanksshi Agarwal is a former LAMP fellow and a policy and political researcher based out of Delhi. Prannv Dhawan, a student of NLSIU Bengaluru, is the founding editor of Law School Policy Review.
The article was published in the Wire India on 10 July 2019.