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 

Stalling Parliament negates democracy

By Swapan Dasgupta

Michael Heseltine was a renowned British politician who, many say, should have been the leader of the Conservative Party after Margaret Thatcher was unceremoniously dumped. There are many reasons why Heseltine never made it to the top job — he was seen as too liberal, too flamboyant and too individualistic — but one thing that was always held against him was his moment of excitable indiscretion in 1976.

Provoked by a group of socialist louts singing the ‘Red Flag’ in the House of Commons, Heseltine picked up the ceremonial mace and twirled it menacingly. No harm was done and Heseltine was duly reprimanded by the Speaker (he may even have been suspended for a few days). However, this incident, for which he was instantly dubbed ‘Tarzan’ by the media, continued to haunt Heseltine for the rest of his days in active politics. His momentary lapse into indecorous behaviour became a permanent blot on his character.

It would have been so refreshing if the Indian political class and the electorate applied the same exacting standards of parliamentary conduct on our MPs. Far from it. Once upon a time, the disruption of Parliament by the likes of Raj Narain (who was often bodily lifted out of the Rajya Sabha by marshals) was a novelty and viewed as an individual deviation. During the first 10 days of the winter session, both Houses of Parliament did not function. For reasons as varied as price rise, Telangana and FDI in retail, groups of MPs that included both the Opposition and members of the ruling coalition felt that disruption was the best way to register protest. Even after normal functioning resumed last week, Question Hour was disrupted by BJP MPs for flimsy reasons: The demands for the resignation of Home Minister P Chidambaram and External Affairs Minister SM Krishna.

Of late, there has been a sense of public revulsion against the frequent disruption of Parliament but this does not appear to have made too much of an impact. Instead of using Zero Hour effectively, there are some members of the Opposition who have got it into their heads that disruption is always preferable to arguments. Since it takes barely 15 MPs to throw a House into confusion, this extra-parliamentary approach is used with increasing frequency inside Parliament, with the same devastation. In the final years of Rajiv Gandhi’s five-year stint in Government, Parliament witnessed the creation of a “shouting brigade” of Congress MPs who used lung power against a tiny Opposition. In hindsight, Rajiv set an unfortunate precedent. Today, the same shouting brigade has entered the bloodstream of the Opposition and has contributed immeasurably in lowering Parliament to the level of a fish market.

What is important to note is that the debasement of Parliament hasn’t happened because a few MPs have no respect for institutions. It has occurred because those with a full awareness of their actions have encouraged the disruptionists. In other words, it is not ignorance or cultural inadequacy that has led to the assault on parliamentary functioning, but deep cynicism. Rajiv Gandhi knew the consequences of unleashing his shouting brigade; and LK Advani was aware that the reason for disrupting the first substantive session of the UPA Government in 2004 wasn’t any substantive grievance but astrological advice — some Babaji had apparently forecast that the UPA would be tottering before Diwali 2004.

Today, it is the same story of wilful culpability. Sushma Swaraj and Arun Jaitley, the two Leaders of Opposition in Parliament, have distinguished themselves in parliamentary debates. They have the ability to take on arguments with arguments, eloquence, sarcasm and wit. Yet, they have been mute spectators to their less accomplished colleagues running riot. Unless we see evidence of Swaraj and Jaitley actively opposing this mindless culture of disruption, it will be presumed they are co-conspirators in this game.

Of course, the blame should not be directed solely at the Opposition. The Government, whose parliamentary majority rests on maverick and demanding allies, is always anxious to prevent any discussion that involves voting. As the BJD member Jai Panda has written on various occasions, negating all voting resolutions is tantamount to short-changing the electorate. Parliament, apart from being a talking shop, is primarily all about the numbers game. If a formal division is limited to law-making, it leaves out of its purview the entire process of governance. Had the Government agreed to a voting resolution on FDI in retail, there would have been no logic to the disruption of Parliament. Instead, we had the bizarre situation of the Government taking a major initiative, its coalition partners and the Opposition opposing it bitterly and it finally doing a U-turn, without the matter reaching Parliament at all.

The Government cannot pretend that lowering the public esteem of Parliament has been a one-sided contribution of a cussed Opposition. The Opposition has much to answer for but let us not forget that the atmosphere in which Parliament has lost its sheen has been the contribution of the Government. How will parliamentary institutions be strengthened if the Prime Minister, the UPA chairperson and the heir-designate are uncomfortable participating in the proceedings of Parliament? The symbols of electoral democracy, it would seem, have been reduced to tickets for generous housing in Lutyens’ Delhi. We have created a privileged class that has a sense of entitlement but little accountability.

Sunday Pioneer, December 11, 2011