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Why Lawmaking In India Is So Subpar

04/04/2016 8:22 AM IST | Updated 15/07/2016 8:26 AM IST
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NEW DELHI, INDIA - MARCH 8: A Sweeper cleans at Parliament House on the occasion of International Women's Day during the Parliament Budget Session on March 8, 2016 in New Delhi, India. After huge criticism, Finance Minister Arun Jaitley announced roll back of its Budget proposal of imposing a tax on Employees' Provident Fund withdrawals. (Photo by Sonu Mehta/Hindustan Times via Getty Images)

Lawmaking in India is an entirely partisan exercise. The government, with a majority already in hand, pushes through the laws it wants. Since only the government can pass laws--those brought by private members have no chance--no other Member of Parliament takes the initiative. Party bosses in power decide which laws will be proposed, and those in the opposition decide which will be opposed. The legislators merely vote as instructed by their bosses. No one has any interest in the quality of laws. The government is unconcerned because the law is usually assured passage. And the opposition has no interest in the quality because it benefits only if the law is defeated, not if it is improved.

[D]espite all the hoopla about not changing the Constitution's basic structure, successive Indian majorities did just that.

These are symptoms of a fundamental problem: we want the majority to 'rule'. Our system of government is built on the principle of efficiency. "Efficiency in an assembly requires a solid mass of steady votes," as Walter Bagehot, the famous British proponent of the parliamentary system once noted. Hence, by design, this system ensures that the executive gets the laws it wants. That's the basis of majority rule. But ruling majorities detest any other authority getting in their way.

This created a serious lawmaking problem, for India's Constitution wasn't suited to majority rule. It had two elected officials at the top--President and Prime Minister--but there couldn't be two majorities. Similarly, India's legislature had two Houses. Two independent elected assemblies couldn't possibly have the same majority, and choose the same head of government.

So despite all the hoopla about not changing the Constitution's basic structure, successive Indian majorities did just that. The President was reduced to a mere rubberstamp, and ways were found to diminish and bypass the Rajya Sabha. Its purpose as a 'moderating chamber' was destroyed, by ending the requirement that its members actually belong to the state they were elected from. As Kuldip Nayar, columnist and himself a former member of Rajya Sabha notes, "Now the whole house is nominated by political masters."

In India the majority's arbitrariness is not new. Over the years it has relegated Parliament to simply going through the motions of lawmaking.

These basic structural changes made India's lawmaking more suitable for majority rule, but there were still hurdles. Politicians were ambitious, they were not going to just sit in the minority and bide time. They began switching and fragmenting their parties. In the 1980s, India passed anti-defection laws, aimed at stopping the chaos caused by ever changing majorities. This altered legislators' basic role, from voting their conscience to always voting along party lines. Similarly, changes in several procedures altered the basics of how India's laws were made. Committees were formed to review legislation but weren't given any constitutional authority. The ministers could pick and choose which legislation to recommend or which report to discuss in Parliament. Lastly, ordinances were found to be a great way of making laws without open discussion.

What all this meant was that India's majorities could run amok, and they always do. The recent passage of the Aadhar Bill is a case in point. The government avoided going through Rajya Sabha by classifying it as a money bill. It was "a demonstration of just how easily state power can become arbitrary," wrote Pratap Bhanu Mehta, a respected columnist. Another recent example of how the majority gets its way is the defeat of Shashi Tharoor's bill to decriminalize homosexuality. As a private member he wasn't even allowed to introduce it in the Lok Sabha. It was a case of "the ruling party using its brute majority to defeat a motion without even a discussion," said Tharoor.

India's legislators are just rabble-rousing politicians... They are rewarded not for making good laws, but for making good waves inside or outside Parliament.

In India the majority's arbitrariness is not new. Over the years it has relegated Parliament to simply going through the motions of lawmaking. Bills are introduced and passed at lightning speeds without much discussion. We all know how Indira Gandhi's constitutional amendments were passed during the Emergency. But the practice has continued. In one session in 1990, the Chandra Shekhar government passed 18 Bills in less than two hours; in 1999 Parliament met for only 20 sittings but passed 22 Bills; in 2001, 33 Bills were passed in 32 hours; in a 2007 session the Lok Sabha would pass three Bills in 15 minutes; and so on. Parliament's diminished role has also resulted in a steep decline in its duration, from about 130 days a year in the 1950s, to less than 50 in the 2000s.

Parliament has also become increasingly disorderly because it is consigned to being the government's rubberstamp. The Opposition is toothless; it cannot pass or stop major legislation. It can ask questions, make speeches, or walk out. So it tries to grab attention through boisterous behaviour or by forcing an adjournment. In 2004 Kuldip Nayar, revealed that during his six years in Rajya Sabha he found "MPs waiting for instructions for disturbing the House." The tit-for-tat continues; the current difficulty in passing GST bill in the Rajya Sabha is payback for the BJP obstructionism when Congress was in power.

India's system makes the Opposition destructive. Instead of focusing on quality of laws, their entire purpose is to bring the government down.

Thus instead of being lawmakers, India's legislators are just rabble-rousing politicians. Their attention is focused only on politics. They are rewarded not for making good laws, but for making good waves inside or outside Parliament. Since the legislative agenda is decided by a coterie, the rank and file simply follows the party whips. The ministers are also career politicians, not experts or skilled professionals in their area. Private members are not interested in lawmaking to begin with; only 14 private member Bills have passed in history, and none since 1970. Worse, India's system makes the Opposition destructive. Instead of focusing on quality of laws, their entire purpose is to bring the government down. As Arun Shourie noted, "the present system makes adversarial politics inevitable."

Bad [laws] get passed because they are good politics, while good ones flounder or fail. Laws are ill-conceived and terribly drafted.

The outcome of all this is that India ends up with poor laws. Bad ones get passed because they are good politics, while good ones flounder or fail. Laws are ill-conceived and terribly drafted. In 2013, when Parliament passed a whole series of laws doling out public funds, the Indian Express wrote, "Parties cooperate only for flawed legislation, and ignore or quarrel over consequential bills." Also, laws get passed with embarrassing mistakes; 40 errors were discovered, for instance, in the Chemical Weapons Convention Act of 2000, after the law was signed by the President.

India's lawmaking is fundamentally broken. It can only be fixed by fundamental changes, not by tweaking.

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