Of debates, divisions and discretion

By Swapan Dasgupta

It is in the nature of contemporary politics that the more profound facets of political change are often subsumed by the clutter of immediate developments. The first days of the winter session of Parliament has been disrupted by a determined Opposition demanding that the Government subject its decision to facilitate foreign direct investment in multi-brand retailing to a parliamentary floor test. As much as the BJP and Left’s defence of small and medium retailers who may be threatened with unequal competition, the insistence on a voting resolution owes considerably to the belief that the Government is extremely vulnerable on this one issue.

On its part, the Government has maintained that the Constitution is explicit in allowing executive decisions in matters that are not governed by specific laws. Since the larger conduct and organisation of retail trade has been governed by executive orders, the Government is on strong legal ground in maintaining that changes to existing orders, such as the one the Centre notified earlier this year, does not warrant parliamentary approval. Legally speaking, a Government is not obliged to even withdraw its executive orders in the event of parliamentary disapproval—although it is certain that the embarrassment would have triggered a demand for a trust vote.

In the past, Governments haven’t stood on prestige over allowing debates under a voting rule on subjects that are governed by executive discretion. Under the NDA, the Congress and Left joined hands in pressing for a vote on the privatisation of BALCO. Likewise, even though the conduct of foreign affairs is totally in the realms of executive discretion, a ‘sense of the House’ resolution was adopted in 2003 to forestall the possibility of India getting embroiled in America’s war against Saddam Hussein. It is precisely because the UPA-2 was unsure over its ability to cobble together a majority that it fell back on principle to prevent a vote. Once that problem had been successfully negotiated, it became agreeable to a debate followed by a division. At the time of writing, it appears that a debate followed by voting will not create any awkwardness for the Manmohan Singh Government.

Yet, the issue of parliamentary scrutiny of contentious executive decisions is a problem that is unlikely to go away. The Indian Constitution was formulated at a time when the Congress exercised a stranglehold over politics. Under Jawaharlal Nehru, Indira Gandhi and Rajiv Gandhi, the Congress had a commanding majority in Parliament. Consequently, the Opposition rarely pressed for a vote on executive decisions. However, now that India has entered a prolonged phase of coalition governments of varying stability and coherence, the issue is certain to present itself over and over again. Governments with uncertain majorities cannot expect the same measure of indulgence as regimes with a clear mandate.

The Constitution accorded the Centre with more discretionary powers than enjoyed by its counterparts in other democracies. Those familiar with British Constitutional history will be aware of the tussle in the 19^th century between the Whigs and Peelites over ministerial responsibility. The Whigs favoured the entire governmental process being subjected to parliamentary oversight while the Peelites favoured strong government, the insulation of ministers from constituency pressures and sought to emphasise responsibility over responsiveness. These debates have persisted to this day. Parties which appeared to uphold Whig principles while in Opposition have tended to become Peelite when occupying the Treasury benches. India will also witness similar flip-flops.

Yet, some changes have already begun to be felt. As opposed to the time when appointments to important state agencies were left completely to the discretion of the executive, there is an attempt to curtail the element of discretion by involving the Leader of Opposition in many of the selection committees. The Supreme Court’s annulment of the appointment of K.V. Thomas as Central Vigilance Commissioner also demonstrated that the executive cannot act as before. Likewise, the process of appointment of the Director of the Central Bureau of Investigation looks set to undergo a radical change in the coming years, a development that augurs well for the beleaguered body.

Overall, the process of governance by discretion is under serious challenge because the polity is fractured and there are many more aspiring stakeholders. Even foreign policy looks set to witness important shifts. The intervention of Tamil parties in nudging India to vote against Sri Lanka in Geneva earlier this year and Mamata Banerjee’s veto of the Teesta waters agreement with Bangladesh are indications of which way the wind is blowing.

In the short-term, this move towards asserting the supremacy of Parliament over executive discretion may well further impair decision-making and even force a political stalemate in the future. However, there are two positive developments that can also result from this shift to responsive government. First, the curbs on discretionary powers may actually erode the influence of an over-bearing state on civil society. It may actually provide an extra space for citizens to go about their lives without bothering about a vengeful and venal political establishment. Secondly, the process of greater parliamentary oversight may actually propel MPs to look beyond narrow party interests on many matters. If MPs start exercising their independent judgment on most issues, the quality of public life is calculated to improve significantly.

Meanwhile, the UPA can take heart that ‘reforms’ don’t need to be undertaken by stealth. It can be legitimised by parliamentary approval.

Deccan Chronicle/ Asian Age, November 30, 2012